LIBRARY 

OF   THK 

UNIVERSITY  OF  CALIFORNIA. 

OK 


Received 
Accession  No  . 


.  189"^. 


Class  No. 


4 


FOR  GENERAL  READERS 


How  to  Get  Good  Judges 

A  STUDY  OF  THE   DEFECTS  OF 
THE  JUDICIAL  SYSTEMS  OF  THE   STATES 

b 
WITH 

A  PLAN  FOR  A  SCIENTIFIC  JUDICIAL  SYSTEM 


BY 

JOHN   A.  WRIGHT 

Member  of  the  Committee  of  the  San  Francisco  Bar  Association  on  the  Judiciary 


VBRSITT 


SAN  FRANCISCO: 
S.  darson  Company  publtabers 

1802. 


COPYRIGHT,  1892, 
BY  JOHN  A.  WRIGHT,  SAN   FRANCISCO. 


"  The  object  of  the  profession  of  the  law,  of  jurisprudence 
seen  on  its  PRACTICAL  side,  is  not  so  much  that  the"  law  be 
discovered  and  made  known,  as  that  it  be  applied  and 

obeyed." 

PROFESSOR  LORIMER. 


HOW  TO  GET  GOOD  JUDGES. 


POPULAR    DISTRUST    OF   THE    JUDICIARY  —  ITS 
NATURE    AND    CAUSES. 

No  honest  and  sensible  man  who  reads  the 
newspapers  and  converses  with  his  fellows  can 
deny  that  a  large  class  of  people  throughout 
the  United  States  entertains  a  growing  distrust 
of  our  judges  and  judicial  systems.  This  dis- 
trust prevails,  undoubtedly,  to  a  greater  extent 
in  some  States  than  in  others,  and  among  some 
classes  more  than  among  others.  It  exists  side 
by  side  with  the  utmost  respect  for  the  charac- 
ter and  attainments  of  particular  courts  and 
particular  judges.  Sometimes  it  appears  in 
some  old  State,  and  is  attributed  to  special  and 
passing  conditions ;  sometimes  it  appears  in 


HOW    TO    GET    GOOD    JUDGES. 


some  new  State,  and  is  said  to  be  the  natural 
result  of  crude  conditions  and  heterogeneous 
society.  At  an  early  period  in  California,  the 
scorn  of  the  judiciary  and  judicial  methods,  as 
means  to  beneficial  ends,  was  so  great  among 
the  best  classes  in  the  community  that  the  Vig- 
ilance Committee  arose  to  do  lawless  justice  ; 
many  years  later,  in  Louisiana,  a  similar  men- 
tal attitude  on  the  part  of  the  people  provoked  a 
disgraceful,  though  perhaps  unavoidable,  mas- 
sacre. In  almost  every  State  of  the  West  and 
South,  during  the  long  time  between  the  pe- 
riod of  the  California  Vigilance  Committee  and 
that  of  the  New  Orleans  Committee,  there  have 
been  lynchings  innumerable,  because  neither 
the  judicial  system  nor  the  judges  were  trusted. 
For  full  forty  years  the  same  political  disease 
has  in  some  form  appeared  in  almost  every 
State  in  the  Union,  and  we  are  apparently  no 
nearer  its  cure  to-day  than  when  it  first  horri- 
fied Americans.  Recently,  in  New  York,  cer- 
tain judges  were  forced  by  operation  of  law  to 
confess  that  they  had  bought  their  nomina- 
tions. Some  form  of  distrust  surely  arises 
against  them.  Are  we  to  go  on  forever  so  far 
distrusting  our  judges  and  judicial  systems  that 


HOW    TO    GET    GOOD    JUDGES. 


we  must  on  occasion  seek  relief   in  murder, 
massacre,  and  riot  ? 

Some  recent  manifestations  of  the  distrustful 
attitude  of  the  public  mind  towards  the  judici- 
ary in  the  State  of  California  have  prompted 
the  publication  of  this  essay.  For  so  long  as 
feeling  has  not  taken  the.  form  of  violence, 
there  seems  some  hope  that  the  suggestions 
here  offered  will  be  patiently  and  attentively 
examined  with  a  view  toward  their  adoption,  if 
apparently  practicable.  Indeed  I  have  noticed, 
(or  thought  I  had),  evidence  that  the  remedies 
which  I  shall  propose  were  at  last  dimly  dis- 
cerned by  some  honest  and  thoughtful  minds 
in  Louisiana,  and  this  gives  me  further  hope 
that  they  will  be  somewhere  weighed  with  care. 
Moreover,  the  marvelous  strides  which  scien- 
tific methods  to  reform  the  ballot  and  the  civil 
service  have  made  in  the  minds  of  all  classes, 
still  farther  encourage  me  to  offer  a  proposal 
for  the  reformation  of  the  most  important 
branch  of  our  State  governments  by  means 
which  will  be  found  to  be  in  their  nature  born 
of  the  political  ideas  and  aspirations  that  gave 
birth  to  the  Australian  ballot  system,  the  mod- 
ern notions  of  a  proper  civil  service,  and  the 
American  system  of  free  public  schools. 


5*  17  B  RSI  T  7 


HOW    TO    GET    GOOD    JUDGES. 


For  the  benefit  of  such  readers  as  may  not 
be  familiar  with  the  recent  events  in  the  State 
of  California,  as  well  as  for  the  purpose  of 
pointing  to  the  primary  grounds  for  public  dis- 
trust of  the  judges,  I  shall  open  with  a  brief 
statement  of  recent  occurrences  in  California, 

"     \ 

confining  myself,  however,  exclusively  to  the 
manifestations  of  distrust  contained  in  thosq 
occurrences.  The  grounds  of  distrust  are  fun- 
damentally the  same  everywhere  as  in  Cali- 
fornia, but  California  at  this  time  happens  to 
offer  especially  clear  evidence  of  the  sources  of 
disease.  With  slight  variations  the  remedies 
must  be  the  same  if  the  disease  is  the  same. 

A  great  public  question  recently  arose  out  of 
the  action  of  one  of  the  judges  of  our  Superior 
Court  in  undertaking  to  impanel  a  Grand  Jury 
for  the  city  of  San  Francisco  by  means  of  an 
elisor,  without  the  intervention  of  the  Sheriff. 
Rumors  had  filled  the  air  that  the  State  Legis- 
lature and  the  Municipal  Boards  were  corrupt, 
root  and  branch — were,  indeed,  but  organized 
bands  of  public  plunderers  existing  for  years 
under  the  leadership  of  political  bosses  of  the 
most  degraded  and  skillful  type.  The  judge 
referred  to  assembled  and  swore  in  a  body  of 


HOW    TO    GET    GOOD    JUDGES. 


citizens  as  a  Grand  Jury,  who  immediately  is- 
sued subpoenas  summoning  several  persons  as 
witnesses,  who  were  said  to  have  some  knowl- 
edge of  corruption  in  public  place.  One  of 
these  witnesses  refused  to  obey  the  subpoena 
on  the  ground  that  the  Grand  Jury  was  not 
regularly  organized.  He  was  brought  up  for 
contempt  before  the  judge  who  formed  the  jury, 
and  convicted.  But  immediately  another  judge 
of  the  same  Court  issued  a  writ  of  habeas  cor- 
pus, reviewed  the  commitment,  declared  the 
Grand  Jury  unlawful,  and  released  the  pris- 
oner. Then  there  was  assembled  a  public  meet- 
ing which  denounced  in  unmeasured  terms  the 
judge  who  released  the  prisoner,  ascribing  to 
him  base  subservience  to  the  mandates  of  a 
faction  said  to  be  interested  in  thwarting  the 
inquiry  of  the  Grand  Jury,  with  this  reason  for 
the  subservience  added:  That  he  owed  his  nom- 
ination and  election  to  the  faction.  The  spectacle 
of  one  judge  of  a  Court  reversing  the  act  of  an- 
other judge  of  the  same  Court  without  possess- 
ing appellate  jurisdiction,  was  forcibly  com- 
mented on.  Another  witness,  summoned  by 
the  same  Grand  Jury,  undertook  to  get  the 
opinion  of  the  Supreme  Court  (the  highest  Ap- 


6  HOW    TO    GET    GOOD    JUDGES. 

pellate  Court)  on  the  legality  of  the  Grand 
Jury,  in  order  to  set  the  matter  at  rest.  Ac- 
cordingly, he  refused  to  obey,  was  committed 
for  contempt,  but  sued  out  a  writ  of  habeas  cor- 
pus from  the  Supreme  Court,  and  not  from  an- 
other judge  of  the  lower  Court.  The  Supreme 
Court  held  the  summons  lawful  and  the  com- 
mitment authorized.  The  public  press  then 
teemed  with  explanations  and  illustrations  of 
the  rebuke,  presumed  to  be  implied  in  this 
action  of  the  Supreme  Court,  to  the  judge  who 
released  the  first  recalcitrant  witness.  The 
Grand  Jury  proceeded  with  its  work,  and  in 
due  time  found  an  indictment  against  a  mem- 
ber of  the  late  Legislature  for  corruption  in 
office.  The  indicted  legislator  immediately  ap- 
plied to  the  Supreme  Court  for  a  writ  of  pro- 
hibition, to  prevent  any  trial  from  taking  place 
in  the  Court  below,  on  the  ground  that  the 
Grand  Jury  had  been  unlawfully  summoned, 
and  therefore  could  not  indict  him.  His  ap- 
plication was  argued  in  the  Supreme  Court 
most  elaborately  by  counsel  on  both  sides,  and 
submitted  for  decision.  While  it  was  under 
consideration,  the  newspaper  press  cajoled  and 
threatened  the  Court  in  a  manner  that  I  am 


HOW    TO    GET    GOOD    JUDGES. 

certain  was  never  before  witnessed  in  a  civil- 
ized community.  Undoubtedly,  all  the  "  cor- 
rupt influences  "  of  the  State  were  opposed  to 
the  existence  of  the  Grand  Jury,  but  in  sup- 
port of  the  cause  of  "  honesty,"  the  newspapers 
who  espoused  that  side  did  not  hesitate  to 
threaten  the  judges  with  the  election  of  a  Leg- 
islature that  would  summarily  remove  them 
from  office  if  they  decided  in  favor  of  the  point 
raised  by  the  prisoner.  The  same  newspapers 
insinuated  that  some  of  the  judges  were  offered 
(by  interests  opposed  to  the  Grand  Jury  and 
its  work)  appointments  on  the  vacant  Federal 
Bench,  and  warned  the  judges  not  to  swallow 
the  bait.  The  whole  tone  of  the  newspaper 
press  expressed  the  idea  that  the  several  judges 
of  the  Supreme  Court  were  creatures  of  politi- 
cal faction,  hoping  for  promotion  only  through 
subserviency  to  the  powers  that  created  them. 
A  majority  of  the  Court  sustained  the  law 
point  made  on  behalf  of  the  prisoner ;  the 
Grand  Jury  was  declared  unlawful,  and  he  was 
discharged.  Then,  again,  the  press  attacked 
the  Court  more  fiercely  and  bitterly  than  ever, 
and  again  the  key-note  of  the  attack  was  a  ref- 
erence to  the  methods  and  men,  by  means  of 


8  HOW   TO    GET    GOOD    JUDGES. 

which  the  several  judges  were  nominated. 
Finally,  the  judge  of  the  lower  Court,  whose 
action  had  been  reviewed  and  reversed,  assem- 
bled the  unlawful  Grand  Jury,  and  from  the 
Bench  pronounced  to  them  a  carefully  pre- 
pared opinion,  criticizing  and  controverting 
the  reasoning  of  the  Supreme  Court.  This 
action  was  pronounced  heroic  by  one  section 
of  the  press,  and  by  another  demagogic  and 
subversive  of  all  ideas  of  judicial  decorum  and 
good  government. 

It  is  not  to  the  purpose  to  ask,  what  in  real- 
ity are  the  characters  of  those  men  who  in 
California  have  been  so  fiercely  assailed  ?  The 
vilest  scandals  have  been  circulated  from  time 
to  time  against  so  many  other  judges  in  Cali- 
fornia, both  by  public  gossip  and  public  print, 
without  an  effective  demand  from  any  source, 
either  for  punishment  or  vindication ;  the 
judges  are  changed  so  often,  and  old  scandals 
are  so  readily  forgotten  by  the  public  when 
new  ones  appear,  that  public  opinion  has  be- 
come contemptible  in  the  eyes  of  honest  and 
dishonest  judges  alike.  The  very  judge  who 
impaneled  and  supported  this  Grand  Jury,  and 
who  at  the  end  of  the  litigation  was  on  the 


HOW    TO    GET    GOOD    JUDGES.  9 

topmost  wave  of  popular  esteem,  only  a  few 
months  before  he  impaneled  the  Grand  Jury 
was  himself  the  object  of  a  newspaper  attack, 
if  possible  more  virulent  and  scandalous  than 
that  made  on  the  abused  Court  that  disbanded 
his  Grand  Jury.  An  honorable  man  who  fully 
appreciates  the  lofty  nature  of  judicial  func- 
tions will  shrink  from  ascribing  to  any  judge, 
without  the  most  convincing  evidence,  a  design 
to  shape  his  decisions  so  as  to  win  favor  with 
the  people. as  utterly  as  he  would  shrink  from 
ascribing  to  any  judge,  a  design  to  win  the 
favor  of  a  clique:  for  "  popularity "  or  "un- 
popularity," whether  with  a  large  class  or  with 
a  small  class,  is.  if  it  influences  a  judge,  as 
much  a  bribe  to  him  as  money.  It  is  far  from 
my  purpose  to  make  mean  insinuations  against, 
or  institute  invidious  comparisons  between 
any  of  the  judges  to  whom  I  have  alluded.  I 
ascribe  no  reasons  for  their  decisions  except 
those  given  in  their  official  opinions.  I  desire 
to  point  out  merely,  that,  from  time  to  time, 
all  shades  of  opinion,  respecting  the  conduct  of 
all  the  judges  indifferently,  were  indulged  in 
with  readiness,  except  the  opinion  that  they 
would  of  necessity  be  governed  by  their  judi- 


10  HOW    TO    GET    GOOD    JUDGES. 

cial  oaths,  indifferent  to  public  or  private  favor, 
and  competent  to  arrive  at  correct  conclusions. 
Many  of  them  I  know  (  and  doubtless  others  of 
them  whoni  I  do  not  know  )  enjoy  in  their 
private  circles  the  highest  respect  and  admira- 
tion of  a  large  number  of  honorable  men  and 
women  ;  and,  humanly  speaking,  the  insight 
into  the  character  and  motives  of  a  man  which 
is  obtained  by  his  personal  acquaintances  is 
the  best  knowledge  we  can  obtain  of  him.  I 
am  not  dealing  with  their  private  characters, 
but  with  the  fact  that  from  time  to  time  the 
press  and  other  influences  have  made  it  ap- 
pear, and  honest  people  have  believed,  whether 
justly  or  unjustly,  that  those  judges  have  been 
governed  in  their  official  action  either  by  the 
basest  bias  towards  and  subordination  to  the 
corrupt  ends  of  great  corporations,  factions, 
and  private  interests,  or  by  the  equally  base 
purpose  of  winning  popularity  or  avoiding  un- 
popularity with  the  masses. 

Nor  do  I  intend  to  argue,  as  many  worthy 
X  and  all  unworthy )  lawyers  argue,  that  the 
reputations  of  our  courts  and  judges  have  suf- 
fered merely  because  the  press  is  wantonly 
licentious  or  moved  by  vicious  lust  of  money 


HOW    TO    GET    GOOD    JUDGES.  11 

and  political  power.  The  assertion  is  made 
idly  when  it  is  not  knowingly  false.  Were  our 
judicial  system  as  vigorous  and  well  adapted  to 
fulfil  its  functions  as  is  our  press,  not  alone 
would  the  reputations  of  our  courts  and  judges 
be  unassailable,  but  there  could  exist  no  licen- 
tious use  of  free  speech.  Any  judicial  system 
is  demonstrated  to  be  rotten,  or  at  least  in- 
effectual, if  we  assert  that  a  vicious  press  has 
power  to  blast  the  reputations  of  the  courts. 
One  of  the  very  foremost  purposes  of  a  judi- 
cial system  is  to  protect  reputations — those  of 
its  own  officers  included.  If  it  be  a  healthy 
judicial  system,  it  will  accomplish  this  purpose 
by  creating  and  fostering  in  its  members  wor- 
thiness palpable  to  all  men  ;  if  it  be  an  un- 
healthy system,  it  will  aim  rather  to  -suppress 
criticism.  The  truth  is,  the  rude  vigor  with 
which  the  press  asserts  and  exercises  the  func- 
tion of  criticizing  the  judicial  system  to  the  peo- 
ple, and  the  weakness  with  which  the  judicial 
system  sustains  the  attack  before  the  people, 
demonstrates  in  the  highest  degree  the  value 
of  free,  and,  on  occasion,  of  very  free  speech. 
The  weak  spot  is  pointed  out,  and  though  nau- 
seous medicine  is  administered,  with  the  bless- 


12  HOW    TO    GET    GOOD    JUDGES. 

ing  of  Providence,  it  may  prove  the  means  to 
a  cure. 

We  know  that  all  these  courts  were  consti- 
tuted, and  all  these  judges  elected,  by  meth- 
ods prescribed  by  the  people,  not  carelessly 
or  indifferently,  but  with  the  most  jealous 
«  and  scrupulous  regard  on  the  part  of  the  peo- 
ple for  their  own  interests.  We  know  that 
every  effort  has  been  made  to  keep  the  courts 
and  judges  in  "  touch  with  the  people,"  and  to 
prevent  them  from  becoming  tyrannous,  auto- 
cratic, aristocratic,  "bureaucratic,  or  anything 
else  ghost-like  and  horrible  to  the  popular 
imagination.  Salaries  are  kept  low  that  the 
judges  may  not  have  proud  stomachs  ;  term  of 
office  is  made  short  in  order  that  they  may  un- 
derstand that  they  are  servants  who  must  earn 
the  approval  of  their  masters,  and  solicit  re- 
employment  as  a  grace  and  a  favor,  not  in  any 
degree  as  a  right  earned.  Yet,  notwithstand- 
ing all  the  devices  and  desires  of  the  people, 
notwithstanding  they  reserve  strict  control, 
they  have  not  succeeded  in  getting  courts  or 
judges  in  whom  they  place  that  confidence 
that  a  master  should  have  in  his  chief  em- 
ployees. 


HOW    TO    GET    GOOD    JUDGES.  13 

And  we  know;  or  at  least  we  may  fairly 
assume,  that  some  high-minded  men  on  the 
Bench  have  suffered  or  may  suffer  obloquy  for 
the  faults  of  base  men  and  a  base  system  :  for 
trial  by  newspaper  or  public  gossip  is  not 
adapted  to  the  purpose  of  reaching  nicely  ac- 
curate conclusions.  And  we  know  that  suspi- 
cious and  ungenerous  masters  have  no  right  to 
find  trusty  and  faithful  servants.  Can  judges 
who  may  be  one  day  on  the  summit  of  "  popu- 
larity "  and  another  day  in  the  depths  of  "  un- 
popularity "  administer  real,  impartial,  God- 
given  justice  between  man  and  man  for  any 
long  space?  Must  they  not  sometimes  be  tempt- 
ed to  suit  their  decisions  so  as  to  win  favor  and 
obtain  promotion  from  the  people — or  from 
some  one  else  ?  If  many  of  them  yield  to  such 
temptation,  or  if  even  we  suspect  them  to 
yield,  are  they  to  us  any  longer  judges  ?  Are 
they  not  rather  mere  political  hirelings  ?  And 
should  we  not  better  at  once  discard  the  pre- 
tense that  we  have  any  judicial  system  what- 
ever ? 

Do  we  not  present  a  pitiful,  nay,  contemp- 
tible, aspect  to  humanity  ?  This  government 
is  part  of  ourselves.  And  if  we  are  afflicted 


14  HOW   TO    GET    GOOD    JUDGES. 

with  a  loathsome  disease,  should  we  make  an 
exhibition  to  the  world  of  our  sores  ?  If  we 
proclaim  to  humanity  that  we  are  incompetent 
to  create  efficient  tribunals,  or  to  select  just 
judges,  how  can  we  hope  to  be  respected  ? 
How  can  we  expect  our  children  to  grow  up 
with  love  of  country,  or  regard  for  morality  ? 
If  a  government  can  secure  to  us  neither  prop- 
erty nor  honor,  how  long  shall  we  endure  it  ? 
And  though  we  may  be  willing  to  live  our  lives 
in  cowardly  suspicion  and  distrust  of  those  to 
whom  we  commit  the  sacred  trust  of  adminis- 
tering justice,  shall  not  a  better  generation 
arise  to  destroy  a  system  of  government  that 
debases  the  soul  of  man  ? 

Let  us  look  the  facts  plainly  in  the  face. 

We  cannot  go  on  forever  distrusting  our 
judges.  If  the  day  is  not  approaching  when 
we  shall  put  faith  in  the  impartiality  of  our 
tribunals,  the  day  is  approaching  when  an  end 
will  be  put  to  our  present  form  of  civil  society. 
I  dare  not  think  that  Republican  institutions 
on  the  American  continent  are  doomed  to  die 
of  corruption.  But  I  do  think  it  is  high  time 
that  something  was  done  to  restore  confidence 
in  our  institutions,  and  I  am  certain  that  until 


HOW    TO    GET    GOOD    JUDGES.  15 

we  shall  establish  a  judicial  system  possessing 
the  utmost  confidence  and  respect  of  the  people, 
we  cannot  make  a  sure  step  toward  any  other 
substantial  improvement  in  government. 

That  absolute  confidence  in  the  ability  and 
integrity  of  the  law  officers  of  the  State  would 
go  far  toward  preventing  corruption  and  mal- 
administration in  all  branches  of  the  govern- 
ment— nay,  would  almost  entirely  reform  the 
government — is  a  proposition  which  will  com- 
mend itself  to  any  one  who  comprehends  the 
mighty  influence  which  the  law  officers  of  the 
State  have  upon  the  government.  The  object 
of  this  essay  is  to  suggest  means  of  creating 
and  justifying  confidence  in  the  law  officers  of 
the  government.  - 

/  And  I  think  it  must  be  apparent  that  at 
the  bottom  of  our  distrust  in  our  Courts  and 
judges  lie  the  facts  that  under  our  present  system 
the  great  corporations  and  private  interests  of  the 
State,  the  corrupt  politicians,  their  retainers  and 
patrons,  are  the  persons  by  ivhom  our  judges  are 
principally  nominated  and  elected,  and  that  we 
have  no  adequate  means  of  disciplining  or  vindi- 
cating our  judges  when  their  reputations  are  as- 
sailed. 

fuNI7BRSITr] 


16  HOW    TO    GET    GOOD    JUDGES. 

So  long  as  any  method  of  selecting  the  judges 
is  employed  that  is  palpably  amenable  to  po- 
litical influences  of  a  low  order,  so  long  shall  we 
necessarily  feel  this  distrust.  For  this  reason 
a  system  of  selecting  the  judges  by  appoint- 
ment of  the  Governor,  with  or  without  the  con- 
sent of  the  Legislature,  would  only  be  a  shade 
better  than  the  present  system.  Governors,  as 
well  as  political  conventions,  may  be  influenced 
in  their  choice  by  unworthy  motives  and  are 
110  more  competent  to  select  the  best  men. 
Therefore,  some  system  of  selection  radically 
different  from  any  yet  tried ;  some  system 
adapted  in  a  more  scientific  manner  than  any 
that  has  hitherto  been  suggested  to  the  task  of 
obtaining  the  best  men  for  the  place,  must  be 
found  and  put  in  practice  before  we  shall  feel 
that  perfect  trust  in  the  impartiality  of  our 
judges  so  essential  to  our  self-respect  and  pros- 
perity as  an  organized  community. 

But  there  is  another  ground  for  the  dimin- 
ished public  respect  for  our  high  tribunals. 
During  the  past  forty  years  the  law  Courts 
throughout  the  United  States  have  steadily  be- 
come less  capable  of  satisfactorily  dispatching 


HOW   TO    GET    GOOD    JUDGES.  17 

business.  Never  at  any  period  in  the  history 
of  the  race  has  justice  been  more  unconscion- 
ably delayed.  Yet,  during  these  forty  years 
of  decadence  in  businesslike  efficiency  on  the 
part  of  our  Courts,  a  steady  and  marvelous 
growth  of  that  very  ability  which  the  Courts 
lack  has  created  and  fostered" gigantic  corpora- 
tions, private  fortunes  and  enormous  enter- 
prises of  all  kinds.  There  is  no  comparison 
between  the  efficiency  for  its  ends  of  the  great- 
est Court  of  many  a  great  State,  and  the  effi- 
ciency for  its  ends  of  a  Board  of  Directors  of 
many  a  corporation  under  the  ostensible  juris- 
diction of  the  State.  Until  the  Courts  are  on  a 
par  with  private  organizations  in  capacity  for 
work  ;  until  litigation  is  promptly  and  efficient- 
ly dispatched,  public  respect  for  our  tribunals 
will  not  be  what  it  should  be. 

The  causes  of  this  business  inefficiency  of 
our  judicial  system  are  not  many  nor  far  to 
seek.  The  chief  cause  is,  that  during  these 
forty  years,  the  talent  and  industry  that  should 
have  been  engaged  on  the  bench  and  in  the 
administrative  law  offices,  in  developing  the 
science  of  jurisprudence  for  the  benefit  of  the 
whole  people,  have  been  attracted  by  greater 


18  HOW    TO    GET    GOOD    JUDGES. 

rewards  to  the  support  of  the  private  interests 
I  have  alluded  to  ;  have  been  repelled  from  the 
public  service  by  State  parsimony  and  public 
distrust. 

Of  course,  there  are  exceptions  to  this  gener- 
alization. Sometimes  a  State  offers  its  judges 
compensation  and  security  of  tenure  of  office 
somewhat  approaching  in  value  the  rewards  of 
private  practice;  then  admiration  for  the  func- 
tions of  judicial  office-^— which,  thank  heaven, 
is  still  ingrained  in  lawyers  —  attracts  occa- 
sionally a  thoroughly  able  man  to  the  service 
of  the  State.  But  the  number  of  such  men 
(in  most  of  the  States)  is  insufficient  to  accom- 
plish any  great  result,  and  is  inconsiderable 
compared  to  the  number  of  able  men  remain- 
ing at  the  bar  in  the  service  of  great  private 
interests.  Now,  in  order  to  accomplish  any- 
thing in  the  way  of  substantial  law  reform,  the 
Bench  and  the  administrative  law  officers  of 
the  State,  as  a  class,  should  be  markedly 
superior  in  experience  and  capacity  to  the 
remainder  of  the  bar  as  a  class.  It  must  be 
evident  that  so  long  as  better  work  is  done  in 
waging  litigation  at  the  bar  than  is  done  by 
the  Bench  in  terminating  litigation,  the  mass 


HOW   TO    GET   GOOD    JUDGES.  19 

of  law  suits  will  grow.  While  judges  are  gen- 
erally inferior  in  capacity  to  the  lawyers  em- 
ployed by  private  interests,  public  interests  are 
necessarily  delayed  and  thwarted.  No  reform 
in  mere  procedure  can  prevent  it. 

That  at  present  the  general  effectiveness  of 
the  lawyers  who  serve  great  private  interests  is 
markedly  greater  than  the  general  effectiveness 
of  the  lawyers  in  the  public  service,  cannot  be 
questioned.  Shall  we  wonder,  then,  that  the 
efforts  of  the  former  class  must — slowly,  inter- 
mittently, imperceptibly,  perhaps,  but  still 
steadily — prevail  in  all  minor  conflicts  between 
public  policy  and  private  interests  ? 

Let  us  ask  ourselves  a  courageous  ques- 
tion :  If  this  tendency  to  general  combination 
between  persons  of  great  wealth,  persons  of 
great  business  capacity  and  persons  of  great 
legal  attainments  be  not  arrested  or  counter- 
balanced what  shall  come  to  the  "  plain  people 
of  the  United  States "  ?  Class  government 
or ? 

"  The  monopolies  have  the  best  lawyers;  the 
State  can  only  now  and  then  get  other  than 
second-rate  men."  Such  is  and  has  been  for 
a  long  time  the  universal  observation.  But 


20  HOW    TO    GET    GOOD    JUDGES. 

are  not  the  causes  obvious  ?  "  The  monopo- 
lies "  offer  the  greatest  careers  that  professional 
attainments  can  reach  in  the  life  of  an  Ameri- 
can lawyer  to-day;  and  ability  alone  is  the  pass- 
port to  these  careers.  The  monopolies  ask  for 
the  utmost  loyalty  and  the  best  efforts  of  the 
men  who  serve  them,  but  they  offer  in  ex- 
change wealth,  social  consideration,  relief  from 
anxiety;  thus  they  keep  the  minds  of  those 
they  employ  free  for  and  encouraged  to  the 
utmost  exertion.  But  the  State  offers  no 
career  at  all  comparable  to  this;  its  service 
attracts  few  men  of  eminent  ability,  seriously 
sensible  of  the  responsibilities  they  owe  to 
themselves  and  their  families.  Nor  is  capacity 
alone  the  passport  to  the  State's  service,  but 
the  favor  of  politicians.  Offices  that  call  for 
the  noblest  qualities  of  the  human  mind  must 
be  sought  through  the  paths  of  low  political 
intrigue  ;  and  the  reward  offered  to  a  lofty 
mind  for  this  abasement  is  a  stinted  compen- 
sation, an  insecure  tenure — no  provision  for 
growing  domestic  necessities,  no  provision  for 
old  age,  not  even  public  confidence.  How  can 
we  expect  dispatch  of  business  and  independ- 
ence of  conduct  on  the  part  of  our  judges  if 


•JU7BESITYJ 

HOW    TO    GET    GOOD    JUDGES.  21 

the  only  stimulus  we  offer  them  consists  of 
such  nice  problems  as  how  to  make  ends  meet 
at  home,  how  to  secure  a  re-nomination  and 
how  to  account  for  the  "  luck "  of  men  who 
"  amass  fortunes  at  the  bar  in  doing  work  of 
the  same  character  "  (if  not  the  same  quality) 
"  for  which  men  on  the  beneh  are  rewarded 
with  anxiety  and  humiliation  "  ? 


22  HOW   TO    GET    GOOD   JUDGES. 


II. 


GENERAL    NATURE    OF    THE    REMEDIES. 

The  general  nature  of  the  remedies  to  be 
applied  to  this  state  of  things  is  sufficiently 
obvious,  but  the  means  of  applying  the  reme- 
dies could  only  be  discovered  by  diligent 
thought  and  observation.  I  believe,  however, 
that  those  means  are  now  within  our  reach, 
though  I  fear  we  may  not  have  the  courage  to 
adopt  them.  I  do  not  mean  to  say  we  can 
weed  the  bench,  the  law  offices  of  the  State, 
and  the  bar,  at  once,  and  by  a  single  act,  of 
all  incompetent  and  unworthy  persons.  The 
weeds,  through  a  long  course  of  stupid  neglect, 
have  been  allowed  to  grow  to  surpassing  luxu- 
riance ;  but  I  do  confidently  submit  that  a 
system  can  be  devised  on  lines  that  will,  in 
time,  accomplish  the  results  we  have  in  view, 
so  far  as  those  results  are  attainable  outside 
of  Paradise. 

In  general  terms  we  must  aim  : 


HOW    TO    GET    GOOD    JUDGES.  23 

1st.  To  make  a  career  in  the  service  of 
the  State  more  attractive  to  lawyers  than  any 
career  at  the  bar  ; 

2nd.  To  make  entrance  to  the  legal  service 
of  the  State,  as  far  as  possible,  unattainable 
by  any  but  the  most  suitable  men  at  the  bar  ; 

3rd.  To  make  dismissal  from  the  service  of 
the  State  certain  to  follow  misconduct  ;  and, 

4th.  To  elevate  the  character  and  capacity 
of  the  entire  bar. 

These  ends  cannot  be  reached  in  a  day,  nor 
yet  in  a  year  under  any  system.  Under  the 
present  system  they  never  can  be  reached. 
And  I  do  not  lose  sight  of  the  fact  that  what- 
ever system  be  devised  it  must  work  with  and 
upon  the  material  we  now  have  at  the  bar  and 
on  the  Bench,  good,  bad  or  indifferent  as  that 
material  may  be. 

Common  sense  points  out  that  (except,  per- 
haps, in  the  City  of  New  York,  where  the 
judges  receive  salaries  of  $17,500  a  year)  the 
first  thing  to  be  done  toward  reaching  our  end 
is  to  exercise  more  liberality  ;  to  increase 
largely  the  salaries  of  the  judges  ;  to  increase 
considerably  the  salaries  of  all  other  law  offi- 
cers, and  to  make  tenure  of  office  dependent 


24  HOW    TO    GET    GOOD    JUDGES. 

on  good  behavior.  Able  lawyers  will  then 
turn  their  attention  to  the  public  service. 

If  the  people  want  the  best  lawyers  in  their 
service  —  and  we  know  that  the  want  is 
urgent — then  the  people  must  outbid  the  u  mo- 
nopolists "  in  competition  for  such  men.  The 
people  are  the  greatest  and  the  richest  corpora- 
tion within  the  limits  of  the  State.  Why 
should  they  hesitate  ?  How  long  can  they  be 
powerful  if  their  rivals  or  enemies  possess  the 
services  of  the  ablest  men  in  the  community  ? 
What  would  any  one  say  of  the  good  sense  of  a 
commercial  or  manufacturing  house  possessed 
of  practically  unlimited  capital,  and  engaged 
in  a  most  important,  extensive  and  compli- 
cated business,  that  nevertheless  refused  to 
pay  its  most  indispensable  employees  what 
they  are  offered  by  rival  houses  of  small  im- 
portance ? 

Lest  I  should  be  misunderstood  in  respect 
to  the  extent  of  the  emoluments  that  a  State 
should  offer,  I  assert  that  on  moral  grounds 
quite  apart  from  any  grounds  of  expediency 
the  salary  of  a  Justice  of  the  Highest  Appellate 
Court  should  not  be  less  than  the  salary  of  the 
highest  paid  official  in  any  private  corporation 


HOW    TO    GET    GOOD    JUDGES.  25 

in  the  State,  and  the  respective  salaries  of  the 
Judges  of  the  Superior  Courts  should  be  pro- 
portionately dignified.  There  is  no  Court  in 
the  State,  above  that  of  Justice  of  the  Peace, 
that  does  not  administer  affairs,  merely  finan- 
cial, of  quite  as  much  importance  as  the  affairs 
of  many  corporations,  and,  that  does  not  re- 
quire of  its  presiding  magistrate,  for  the  prop- 
er discharge  of  his  duty,  higher  mental  and 
moral  qualities  than  any  private  business, 
however  extensive.  Consider  the  enormous 
financial  interests  finally  disposed  of  by  the 
Supreme  Appellate  Courts  every  year  and  the 
enormous  fortunes  that  pass  through  the  Pro- 
bate Courts.  But,  apart  from  the  merely 
financial  importance  of  the  work  done  by  our 
Courts,  no  bank  or  railroad  corporation  affects 
the  rights,  morals  and  growth  of  the  whole 
people  of  the  State  to  half  the  extent  that  one 
Court  does.  To  obtain  the  best  men  for  our 
Courts  is  a  moral  duty  ;  it  is  no  less  a  moral 
duty'  to  offer  them  commensurate  reward.  If 
it  is  worth  while  for  the  stockholders  of  Wells, 
Fargo  &  Co.  and  the  California  Bank  to  offer 
their  respective  presidents  salaries  of  $15,000 
or  $20,000  a  year,  how  much  is  worth  the  while 


26  HOW    TO    GET    GOOD    JUDGES. 

of  the  people  of  the  great  State  of  California 
to  offer  their  Chief  Justice  ? 

Even  if  the  scale  of  salaries  which  I  suggest 
be  adopted,  the  best  judicial  salary  would  not 
be  at  all  equal  to  the  income  of  some  of  the 
leading  lawyers  to-day  at  the  bar.  But  if  ten- 
ure of  office  were  made  "  during  good  behav- 
ior/7 with  a  provision  for  retirement  at  a  cer- 
tain age  like  that  granted  by  the  Federal  Gov- 
ernment, the  service  of  the  State  would  be 
attractive  to  almost  every  lawyer  who  leads 
at  the  bar,  though  to  enter  it  might  involve 
some  financial  sacrifice.  Really  high  attain- 
ments in  the  profession  of  the  law  are  rarely 
accompanied  by  absolute  sordidness.  A  broad 
philosophical  study  of  the  law,  successfully 
applied  to  the  affairs  of  every  day  life  (even 
under  the  lowering  influences  that  now  sur- 
round the  profession)  breeds  —  nay,  requires, 
generosity  and  honesty  of  spirit.  If  avarice 
and  its  accompanying  vices  are  bred  by  the 
modern  practice  of  the  law  in  some  men  who 
would  not  otherwise  fall,  it  is  because  the 
people  by  their  fatal  policy  of  penuriousness 
and  absurd  dread  of  "  founding  an  aristo- 
cracy "  allow  profit  and  honor  to  be  dispensed 


HOW    TO    GET    GOOD    JUDGES.  27 

solely  by  avaricious  clients.  And  yet,  finan- 
cial ease,  reasonable  provisions  for  a  growing 
family,  and  reasonable  security  against  old  age 
and  sickness,  may  be  offered  by  the  State  with- 
out offering  great  fortunes.  And  honor  may, 
likewise,  be  offered  by  the  State  without  breed- 
ing the  slightest  aristocratic  tendency,  if  the 
State  will  make  the  road  to  its  service  such  an 
one  as  high  minded  and  competent  men  may 
pursue. 

Having  made  the  office  of  judge  attractive,  it 
becomes  at  once  an  object  of  desire  as  well  to 
the  unworthy  as  to  the  worthy  ;  consequently, 
without  a  system  adequate  to  prevent  the  office 
from  being  captured  by  political  methods,  there 
would  be  little  advantage  in  making  it  desir- 
able to  worthy  men.  It  is  plain  that  merely  to 
stimulate  the  desire  of  all  classes  of  men  at 
the  bar  to  be  judges  or  law  officers  of  the  State 
would  not  make  it  certain  that  the  best  and 
most  suitable  persons  among  those  who  enter- 
tained the  desire  would  succeed  in  obtaining 
the  coveted  place.  And  while  it  is  essential 
for  the  proper  administration  of  law  that  every 
lawyer  should,  from  the  moment  of  entering 


28  HOW    TO    GET    GOOD    JUDGES. 

into  his  profession,  look  forward  to  a  place 
upon  the  Bench  as  the  highest  reward  which 
his  professional  life  could  reach,  it  would  be 
a  lamentable  error  if  that  ambition,  so  worthy 
in  itself,  could  only  be  gratified  by  means  of 
chicanery  and  intrigue.  Not  alone  must^  de- 
sire to  serve  the  State  be  stimulated  in  the 
best  men,  but  the  entire  career  of  a  lawyer 
should,  so  far  as  possible,  be  a  continued  train- 
ing for  the  worthy  and  efficient  discharge  of 
judicial  functions.  The  bar  should  be  so  or- 
ganized that  unworthiness  would  be  equivalent 
to  failure,  would  be  almost  invariably  a  pre- 
ventive to  the  highest  success,  while  real  merit 
would  plainly  appear  to  be  the  only  road  to 
fortune.  "  It  is  important,  above  all  other 
things,  to  properly  define  and  stimulate  the 
moral  character  of  the  advocate — the  advocate 
considered  in  the  spontaneity  and  intimacy  of 
his  actions,  independently  of  his  dealings  with 
other  people."  The  most  essential  qualities  in 
a  judge  are  precisely  the  most  essential  and 
rare  qualities  in  an  advocate.  Probity,  disin- 
terestedness, moderation  and  independence  are 
as  essential  to  a  great  lawyer  as  to  a  great 
judge.  From  plain  virtues  alone  should  power 


HOW    TO    GET    GOOD    JUDGES.  29 

come.  Some  ancient  writer  speaking  on  this 
subject  has  said,  "  one  cannot  be  a  perfect  ad- 
vocate if  one  be  not  a  good  and  honest  man." 

So  it  becomes  an  essential  part  of  any  sys- 
tem that  shall  attempt  to  give  us  any  approach 
to  a  perfect  judiciary,  not  only  that  the  system 
should  offer  adequate  reward  for  worth  and 
promote  the  growth  of  those  qualities  in  mem- 
bers of  the  bar  that  produce  good,  great  judges, 
but  should  be  adequate  to  exclude  unworthy 
persons  from  the  judiciary  —  put  it  beyond 
their  reach. 

The  problem  of  how  to  make  entrance  to  the 
legal  service  of  the  State  unattainable  by  any 
but  the  most  suitable  men  at  the  bar  neces- 
sarily involves  the  problem  of  how  to  elevate 
the  character  and  capacity  of  the  entire  bar. 
But  it  is  plain  that  to  accomplish  any  marked 
elevation  of  the  character  and  capacity  of  an 
entire  class  requires  time  and  care,  while  in 
the  meantime  we  must  have  judges  and  should 
have  the  best  that  the  present  material  at  our 
command  affords.  I  have,  therefore,  aimed  to 
provide  a  system  which  shall  contain  tempo- 
rary expedients  tending  to  set  in  operation  and 
promote  the  growth  of  the  general  scheme. 


30  HOW    TO    GET    GOOD    JUDGES. 

Adequate  reward  is  the  first  essential,  as  I 
have  pointed  out.  But  measurably  to  prevent 
the  offices  in  the  judicial  service  of  the  State 
from  falling  to  inefficient  and  untried  men,  as 
so  often  happens  under  the  present  system,  I 
propose  next  to  render  every  man  ineligible  to 
the  Bench,  until  he  shall  have  continuously 
practiced  for  at  least  ten  years  at  the  bar.  I 
shall  not  stay  to  argue  the  question  whether 
any  man,  whatever  his  talents,  can  be  mature 
enough  to  administer  properly  the  affairs  of  a 
court  of  record,  without  at  least  ten  years'  ex- 
perience at  the  bar.  I  content  myself  with 
pointing  out,  what  no  man  can  deny,  that  ten 
years'  experience  at  the  bar  will  at  least  be 
some  training  that  may  with  advantage  be 
undergone  by  the  greatest  "  natural  genius." 
But,  above  all,  this  requirement  will  be  some 
immediate  barrier  against  the  capture  of  such 
offices  by  certain  so-called  lawyers  who  are 
really  mere  politicians;  it  will  limit  the  choice 
of  judicial  candidates  to  persons  whose  char- 
acters have  become  somewhat  well  known;  thus, 
though  it  is  intended  to  form  part  of  the  gen- 
eral system  which  I  propose,  the  immediate 
advantage  of  such  provision,  even  under  the 
present  conditions  of  the  bar,  must  be  apparent. 


HOW    TO    GET    GOOD    JUDGES.  31 

This  brings  me  to  the  heart  of  the  system 
which  I  have  in  mind.  How  can  we  select 
from  among  those  men  at  the  bar,  who  have 
been  ten  years  in  practice,  those  best  qualified 
to  be  our  judges  ?  Can  we  devise  some  scheme 
by  which,  making  allowance  for  human  error, 
we  shall  get  the  best  attainable  men  ? 

An  examination  of  the  faults  inherent  in  the 
methods  hitherto  employed  by  us  has  led  me 
to  believe  that  such  a  scheme  can  be  devised. 
The  scheme  which  commends  itself  to  me  I 
shall  endeavor  to  unfold  as  it  developed  itself 
in  my  mind. 

I  shall  first  speak  of  the  fault  inherent  in  the 
method  originally  employed  in  the  United 
States,  viz.:  appointment  by  the  Executive. 
This  method  has  apparently  now  produced  in 
England  judges  whose  probity  is  unquestioned 
by  any  class  of  the  English  people;  but  appar- 
ently the  same  method  at  one  time  produced 
utterly  unworthy  judges  in  England,  while  in 
the  United  States,  after  long  trial,  it  was  re- 
jected by  the  people  of  most  of  the  States.  I 
think  the  people  of  the  United  States  were 
right  in  rejecting  the  method  of  appointing 
judges  empolyed  in  the  early  history  of  the 


32  HOW   TO    GET    GOOD    JUDGES. 

republic.  Governors  and  executive  officers  did 
not  use  the  power  entrusted  to  them  wisely 
or  well.  But  the  early  American  method  of 
appointment,  and  the  early  English  method 
from  which  it  was  borrowed,  were  not  in  re- 
ality the  same  as  the  modern  English  method. 
The  difference  is  this  :  While  the  early 
American  governor  and  the  English  Crown 
had  absolute  power  to  select  any  member  of 
the  bar  whom  they  chose  to  favor,  the  English 
Crown  now  has  riot  such  absolute  power.  In 
England  at  the  present  day  the  bar  practically 
chooses  the  judges.  Constitutional  methods 
in  England,  as  every  one  knows,  are  largely 
matters  of  custom  and  precedent.  Custom 
and  precedent,  there,  have  all,  perhaps  more 
than  all,  the  force  of  our  written  constitutions. 
The  British  Crown  cannot  now  appoint  to  ju- 
dicial place  any  but  the  leading  members  of 
the  bar;  and  leadership  at  the  bar  is  acquired 
only  by  the  exhibition  of  those  qualities  of 
mind  and  morals  that  recommend  themselves 
to  the  admiration  of  every  member  of  the  bar. 
One  class  of  lawyers  in  England  employs 
another  class;  employment  is  naturally  given 
to  those  only  who  are  competent ;  competen- 


HOW    TO    GET    GOOD    JUDGES.  33 

cy  naturally  wins  its  way  to  extensive  prac- 
tice and  fame;  and  thus,  while  on  the  road 
upwards  to  place,  the  scrutiny  of  opponents 
and  associates  alike  forms  and  establishes  the 
character  of  the  lawyer.  Once  at  the  head  of 
his  profession  he  becomes  entitled,  by  a  custom 
which  has  slowly  grown  to  be  now  almost  a 
part  of  the  British  constitution,  to  the  next 
judicial  place,  and  this  right  no  government 
can  deny  him  without  danger.  Thus,  the 
British  judges,  though  appointed  by  the  gov- 
ernment, are  no  longer  tyrannous  partisans  (as 
they  once  were),  but  are  substantially  the 
choice  of  the  British  bar.  The  system  of  ap- 
pointment by  the  executive  never  assumed  this 
limitation  in  America;  and,  for  this  reason 
chiefly,  the  American  system  of  appointment 
failed  to  give  satisfaction  to  our  democratic 
communities.  The  American  people  did  not 
suffer,  as  the  English  people  did,  from  judicial 
tyranny,  but,  with  the  jealous  distrust  of  power 
that  inheres  in  the  nature  of  democracies,  they 
saw  that  their  judges  were  often  appointed  for 
other  qualities  than  absolute  merit  and  fitness, 
and  they  justly  feared  that  the  judicial  power 
might  some  day  be  used  to  their  serious  det- 


34  HOW    TO    GET    GOOD    JUDGES. 

riment.  They  could  not  trust  judges  ap- 
pointed for  political  considerations.  They 
could  not  always  have  governors  honest 
enough  to  be  above  political  influences. 
Moreover,  no  American  governor,  with  rare 
exceptions,  had  a  sufficiently  extensive  ac- 
quaintanceship with  members  of  the  bar  and 
their  methods  of  practice  to  enable  him,  how- 
ever honest  his  motive,  to  make  the  best 
choice.  The  people  thought  that  they  collect- 
ively were  better  capable  of  choosing  their 
judges.  So  they  took  the  power  to  themselves. 
But  they  have  not  been  satisfied  with  the  ex- 
periment. They  have  found  themselves  as 
frequently  fooled  and  imposed  upon  as  ever. 
The  common  sense  of  the  matter  would  seem 
to  be  that  it  is  essential  to  a  proper  system 
to  provide  some  means  of  ascertaining  scienti- 
fically what  men  are  really  worthy  to  be  judges 
before  proceeding  either  to  appoint  or  elect 
judges. 

It  will,  of  course,  be  understood  that  the 
British  bar  does  not  exercise  or  claim  any 
right  to  choose  the  judges.  It  simply  selects, 
or  evolves,  a  certain  number  of  persons  for  its 
upper  rank.  By  force  of  long  usage,  it  has 


HOW    TO    GET    GOOD    JUDGES.  35 

come  to  be  obligatory  on  the  Government  to 
appoint  one  of  this  number  only.  The  Gov- 
ernment cannot  now  appoint  obscure  or  un- 
tried men,  though  it  has  a  choice  among  sev- 
eral known  to  be  competent.  The  British 
judiciary,  as  a  whole,  for  many  years,  has  had 
the  confidence  and  respect  of  the  British  peo- 
ple. Exceptions,  no  doubt,  can  be  found,  but 
truly  it  must  be  said,  that  taken  all  in  all,  it  is 
the  most  satisfactory  judiciary  in  the  world. 

I  shall  next  speak  of  the  system  in  vogue 
with  us  of  nominating  judges  by  partisan  con- 
ventions ;  but  of  this  system  I  shall  speak  very 
briefly,  because  its  defects  must  be  already 
manifest.  Traditional  respect  for  the  lofty  nat- 
ure of  judicial  functions  has  somewhat  re- 
strained these  conventions  from  following  their 
natural  bent.  For  this  reason  we  occasionally 
find  conventions  nominating  candidates  for  ju- 
dicial office  without  regard  to  political  expedi- 
ency or  partisanship.  But  these  cases  are  aber- 
rations. Nominating  conventions,  of  the  sort 
I  refer  to,  require  only  time  to  exhibit  their 
true  nature.  Very  soon  judges  are  selected,  or 
seem  to  be  selected,  for  political  reasons,  or 
even  for  less  worthy  reasons.  But,  conceding 


36  HOW    TO    GET    GOOD    JUDGES. 

to  such  bodies  the  utmost  good  faith,  they  are 
from  their  very  nature  totally  incapable  of 
testing  or  determining  the  fitness  of  lawyers 
for  judicial  place.  They  can  neither  possess 
the  intimate  acquaintance  with  the  personality 
of  the  men,  nor  the  accurate  knowledge  of  the 
nature  of  the  work  to  be  done,  that  is  essential 
to  the  exercise  of  an  efficient  choice. 

It  sometimes  happens  that  "  Bar  Associa- 
tions "  recommend  to  nominating  conventions 
or  governors  candidates  for  judicial  place.  As 
a  rule,  the  persons  so  recommended  are  more 
suitable  than  those  otherwise  chosen,  but  this 
is  by  no  means  invariably  the  case,  and  there 
are  several  plain  reasons  why  experiments  in 
this  direction  have  not  succeeded  as  well  as 
might  be  expected.  The  first  reason  is  that 
owing  to  the  inadequate  salaries  and  short 
term  of  office  offered  by  the  State,  only  a  com- 
paratively small,  and  generally  unsuccessful 
class  of  practitioners  can  be  found  willing  to 
be  candidates  ;  hence  the  choice  afforded  to 
the  association  is  limited  not  to  the  most  suit- 
able but  to  the  merely  willing  members  of  the 
bar.  The  most  suitable  men  are  absolutely  ex- 
cluded from  choice.  Another  reason  is  that 


HOW    TO    GET    GOOD    JUDGES.  37 

the  system  of  voting  for  candidates  generally 
in  vogue  within  the  "  Bar  Association  "  is  not 
calculated  to  obtain  the  unbiased  judgment  of 
the  individual  members  of  the  association.  It 
is  a  system  of  canvassing,  and  electioneering, 
precisely  similar  to  the  system  adopted  by  the 
political  conventions,  except-  that,  generally 
speaking,  unworthy  motives  are  not  present 
in  the  minds  of  the  friends  of  candidates.  A 
system  of  this  sort  is  wholly  unfit  to  determine 
accurately  what  person  stands  highest  in  the 
regard  of  the  several  members.  Each  member 
is  more  or  less  biased  or  swayed  by  the  advice 
or  entreaty  of  some  other  member  or  class  of 
members,  and  too  often  votes,  not  upon  his 
personal  knowledge,  nor  for  his  first  and  per- 
sonal choice,  but  upon  the  opinions  of  others, 
and  for  the  choice  of  others.  Moreover,  Bar 
Associations,  generally  speaking,  contain  com- 
paratively few  members  of  the  whole  bar,  and 
thus  not  only  is  the  choice  of  candidates  of- 
fered to  them  meagre,  and  the  method  of  vot- 
ing illy  calculated  to  stimulate  the  individual 
independence  and  obtain  the  secret  judgment 
of  the  members,  but,  by  reason  of  the  compar- 
atively small  number  of  associates,  the  more 


38  HOW    TO    GET    GOOD    JUDGES. 

influential  members  have  undue  facilities  for 
swaying  the  mass.  I  do  not  mean  to  be  un- 
derstood as  intimating  that,  even  under  such 
conditions,  Bar  Associations  ever  consciously 
recommend  any  candidate  from  unworthy  mo- 
tives. I  simply  mean  that  they  cannot  select 
the  best  men  at  the  bar  ;  that  the  stronger  and 
more  influential  members  have  too  great  an 
influence  to  leave  the  choice  of  the  Associa- 
tions entirely  free,  and  that  they  produce,  in 
consequence,  no  result  on  the  judicial  system 
other  than  to  put  on  the  Bench  weaker  men 
than  those  who  remain  at  the  bar. 

Finally,  there  is  very  little  in  the  nature  of 
the  organizations  tending  to  elevate  their  mem- 
bers above  the  rank  and  file  of  the  profession, 
except  what  advantage  may  possibly  be  de- 
rived in  manners  from  greater  opportunities  of 
social  contact.  These  advantages,  however,  if 
they  arise  at  all  in  any  valuable  degree,  do  not 
accrue  to  any  persons  outside  the  Association — 
often  constituting  the  larger  part  of  the  pro- 
fession. For  Bar  Associations  are  little  more 
than  social  clubs.  They  have  no  powers  de- 
rived from,  or  duties  imposed  by  the  State,  and 
consequently  share  the  fate  of  all  men  and 


HOW    TO    GET    GOOD    JUDGES.  39 

bodies  who  attempt  to  command  without  power 
to  enforce  obedience.  They  are  apt  to  be  de- 
spised by  those  whom  they  attempt  to  criticize, 
and  in  turn  to  feel  a  sense  of  their  own  insig- 
nificance, which  is  not  encouraging  to  the 
growth  of  civism.  Being  powerless  to  stem  the 
current  of  what  they  reprobate,  the  members 
retain,  as  their  first  and  chief  thought,  the  in- 
terests of  the  clients  from  whom  chiefly  they 
derive  not  only  sustenance^  but  what  little  of 
reputation  can  be  obained  in  the  practice  of 
the  law  under  existing  conditions.  In  propor- 
tion as  the  association  is  small  in  numbers  and 
its  members  eminent  and  able,  so  in  propor- 
tion are  they  to  be  found  in  the  employ  of 
those  classes  who  have  withdrawn  so  largely 
the  talent  and  capacity  of  the  bar  from  the 
service  of  the  State.  If  those  classes  dominate 
in  the  general  affairs  of  the  community,  the 
independence  of  the  Bar  Association,  even  in 
respect  to  its  utterances,  is  weakened  in  direct 
proportion  to  the  domination.  This  is  spe- 
cially noticeable  in  small  communities  of  com- 
mercial activity,  while  it  is  not  so  observable 
in  larger  places,  or  in  small  communities 
where  commercial  activity  is  not  great.  Un- 


40  HOW    TO    GET    GOOD    JUDGES. 

doubtedly  the  New  York  Bar  Association  ob- 
tains much  of  its  comparatively  greater  inde- 
pendence of  character  from,  the  very  size  of 
the  community,  the  consequent  isolation  of 
the  lawyers  who  compose  it  from  each  other, 
and  the  isolation,  and  comparative  powerless- 
ness  likewise,  of  individuals  and  interests  that 
might  dominate  in  a  smaller  place.  But  every- 
where the  evils  produced  by  our  general  judi- 
cial systems  affect  the  esprit  de  corps  and  the 
conduct  of  our  Bar  Associations,  though  some- 
times in  a  less  degree,  always  quite  in  the  same 
way,  that  they  affect  the  public  spirit  and  disin- 
terestedness of  the  bar  generally.  To  sum  up, 
the  Associations  have  no  power  to  utter  a  sin- 
gle legal  command,  nor  can  they  be  compelled 
to  exercise  even  the  function  of  prosecution 
when  the  greatest  public  need  demands  it;  they 
have  no  organization  adequate  to  fulfil  even 
the  slender  public  tasks  they  fitfully  assume; 
they  can  confer  no  reward  for,  nor  even  give 
any  protection  to  the  exercise  of  honest  inde- 
pendence. They  have  thus  necessarily  failed 
to  gratify  all  the  hopes  that  prompted  their 
formation,  but  they  have  nevertheless  done  a 
great  work  on  the  whole  in  keeping  alive  the 


HOW    TO    GET    GOOD    JUDGES.  41 

fires  of  high  and  suitable  aspiration,  and  have 
demonstrated,  by  the  trust  which  they  have 
obtained  in  so  many  places,  that  the  innate 
common  sense  of  the  people  recognizes  some- 
thing of  their  nature  as  essential  to  our  judi- 
cial systems,  and  is  ready  to  confer  upon  the 
bar,  properly  organized,  sufficient  power  to 
attain  its  noblest  ends. 

Let  us«recall  our  object.  Our  object  is  to 
place  the  stronger  and  more  influential  men 
upon  the  Bench  ;  to  deprive  them  of  the  un- 
due weight  and  power  they  now  exercise  for 
interests  adverse  to  the  interests  of  the  general 
public  ;  to  identify  their  interests  and  aspira- 
tions with  the  interests  and  aspirations  of  the 
entire  people,  and  to  elevate  surely  and  per- 
manently the  character  and  capacity  of  the 
entire  Bar. 

I  have  intimated  that  the  proper  and  most 
suitable  persons  for  judicial  place  are  such  as 
should  be  selected  or  evolved  for  the  purpose 
by  a  scientific  system  which  will  bring  into 
action,  if  humanly  possible,  the  freest,  least 
biased,  most  disinterested  and  most  intelli- 
gent choice  of  each  and  every  member  of  the 


42  HOW    TO    GET    GOOD    JUDGES. 

whole  bar.  It  seems  to  me  that  I  need  not 
argue  that  such  a  method  is  the  true  republi- 
can method  of  obtaining  judges  for  a  republi- 
can community.  We  have  constant  evidence 
that  this  is  the  opinion  of  the  most  intelligent, 
of  our  fellow-citizens  outside  of  the  legal  pro- 
fession. When  a  judge  goes  wrong,  or  offends 
public  judgment,  lawyers  as  a  class  are  re- 
proached, or  called  upon  to  take  action.  The 
public  assumes  that  the  legal  profession  should 
possess  and  exercise  an  influence  in  the  selec- 
tion of  judges,  and  at  least  a  disciplinary  pow- 
er over  members  of  the  bar.  Common  sense 
dictates  that  the  best  persons  to  estimate  ex- 
cellence in  any  art,  trade  or  calling  are  per- 
sons who  follow  that  art,  trade  or  calling. 
The  judgment  of  painters  upon  painting;  of 
musicians  upon  music;  of  architects  upon  ar- 
chitecture ;  of  mechanicians  upon  mechanics, 
was  confessed  by  the  populace  in  the  days  of 
Plato  to  be  the  best  sort  of  judgment.  Our  peo- 
ple are  not  afraid  to  concede  to  their  lawyers 
presumptive  superiority  in  discerning  their 
most  excellent  members.  Still,  it  is  not  to  be 
expected,  nor  would  it  be  advisable,  that  the 
people  shall  relegate  to  the  lawyers  the  power 


HOW    TO    GET    GOOD    JUDGES.  43 

of  appointing  the  judges  without  control  or 
choice  on  the  part  of  the  body  of  the  people. 
The  utmost  that  is  necessary  or  advisable  is  to 
concede  to  the  lawyers  the  power  of  selecting  a 
number  of  persons  from  whom  the  people  can 
safely  choose,  and  whose  characters  and  at- 
tainments, after  being  certified  to  by  the  law- 
yers, may  be  scrutinized  by  the  people  at 
large. 

When  we  reflect  also  that  no  government  can 
exist  without  a  judiciary,  that  this  judiciary 
must  necessarily  be  chosen  exclusively  from 
the  lawyers,  we  perceive  at  once  that  the  whole 
body  of  lawyers  is  in  reality  a  part  of  the  ju- 
dicial system  of  the  State.  But  when  the 
State  grants  to  a  citizen  a  license  to  practice 
law,  it  confers  upon  him  under  our  present 
system  a  powerful  privilege,  without  demand- 
ing from  him  the  exercise  of  any  civic  duty  in 
his  capacity  as  a  factor  of  the  judicial  arm  of 
the  government.  It  is  this  duty,  necessarily 
resulting  from  and  existing  in  a  license  to  prac- 
tice law,  that  the  people  at  large  dimly  per- 
ceive when  they  blame  the  body  of  lawyers  for 
any  fault  in  our  judicial  system.  And  as  it  is 


44  HOW    TO    GET    GOOD    JUDGES. 

essential  to  the  proper  exercise  of  those  civic 
duties  attaching  to  the  profession  of  the  law 
that  the  profession  at  large  shall  be  given  the 
power  necessary  for  the  purpose,  we  easily  per- 
ceive not  only  that  the  lawyers  should  desig- 
nate those  fit  to  be  judges,  but  that  the  whole 
body  of  the  lawyers  should  be  organized  for 
the  purpose  of  making  the  choice  and  enforc- 
ing discipline. 

Many  more  reasons  might  be  given  by  me 
in  support  of  this  fundamental  idea,  but  I 
deem  it  better  for  the  sake  of  brevity  to  state 
at  once  the  outlines  of  the  system  of  organiza- 
tion I  propose,  with  the  hope  that  the  more  re- 
flection is  given  to  it,  the  deeper  will  grow  con- 
viction that  it  has  been  in  general  accurately 
conceived.  Of  course,  I  do  not  mean  to  assert 
that  improvements  may  not  at  once  present 
themselves  to  many  minds  in  the  details  of  the 
system.  Nor  do  I  mean  to  say  that  in  matter 
of  detail,  if  the  system  is  ever  put  in  practice, 
experience  may  not  demonstrate  the  advisabil- 
ity or  necessity  of  some  other  changes. 


HOW  TO  GET  GOOD  JUDGES.        45 


III. 
OUTLINES  OF  THE  PROPOSED  SYSTEM. 

to 

The  general  plan,  underlying  the  system  I 
propose,  is  that  the  bar  shall,  by  the  Constitu- 
tion of  the  State,  be  included  within  the  ju- 
dicial system  of  the  State,  and  the  whole  judi- 
cial system  thus  created  shall  be  so  organized 
that  its  functions  shall  serve:  (A)  to  establish 
and  maintain  suitable  qualifications  for  admis- 
sion to  its  several  ranks;  (B)  to  establish  and 
maintain  suitable  discipline  within  its  several 
ranks  ;  and  (C)  to  naturally  evolve  a  number 
of  lawyers,  proven  to  be  fitted  in  character  and 
attainments,  for  the  judicial  office,  from  whom 
the  judges  shall  be  chosen  by  the  people. 

To  render  this  general  plan  comformable  to 
our  ideas  of  government,  I  suggest  details  that 
are  subsidiary  to,  and  limit  or  aid  the  general 
plan.  The  most  essential  of  these  details  are 
so  designed  :  (D)  that  the  bar  shall  not  be 
permitted  to  assume  an  un-democratic  or  un- 


46  HOW    TO    GET    GOOD    JUDGES. 

American  form  ;     and  (E)  that  its  best  mem- 
bers shall  be  willing  to  become  judges  when 
chosen  by  the  people.     Other  details,  almost  as 
essential,  are  likewise  applied,  viz.:     (F)  that 
while  every  citizen  shall  find  wherever  there  is 
a  free  American  High  School  adequate  means 
of  freely  acquiring  the  necessary  academic  prep- 
aration for  entrance  upon  the  study  of  the  law, 
and  no  citizen  shall  be  excluded  from  the  bar 
on  account  of  fortuitous  circumstances  like  race, 
color,  poverty  or  number  of  persons  already  at 
the  bar,  nevertheless  no  person  shall  be  able  to 
finally  enter  the  bar  without  adequate  knowl- 
edge of  the  law  and  appreciation  of  the  nature 
of  the  duties  of  a  lawyer  to  himself,  his  clients 
and  the  State;  (G)  that  while  the  system  of  en- 
forcing discipline  at  the  bar  shall  be  adequate 
to    maintain  a  high   standard   of  professional 
conduct,  it  shall  not  be  so  rigid  as  to  destroy 
individual  force  of  character;  (H)  that  while 
the  choice  of  candidates  for  the  Bench  shall  be 
limited  to  those  persons  whose  character  and 
capacity  are  ascertained  and  certified  by  the 
bar,  and  while  adequate  means  shall  be  adopted 
to  secure  the  independence  of  the  judiciary, 
there  shall  also  be  such  ready  means  of  enforc- 


HOW    TO    GET    GOOD    JUDGES.  47 

ing  proper  judicial  conduct  that  popular  clamor 
against  the  judiciary  shall  become  equally  un- 
necessary and  disgraceful. 

I  shall  now  state  the  outlines  of  such  a  system 
as  I  think  sufficient  for  the  accomplishment  of 
the  ends  in  view.  Details  shall  be  stated  with 
special  reference  to  conditions  existing  in  the 
State  of  California,  because  I  am  more  familiar 
at  present  with  conditions  in  that  State.  But 
I  must  not  be  understood  as  attempting  to  em- 
ploy, at  any  place  in  this  article,  language  suf- 
ficiently exact  for  actual  employment  in  the 
laws  I  suggest.  My  design  is  only  to  suggest 
outlines  and  purposes,  even  where  I  appear  to 
enter  into  details.  It  will  be  found,  however, 
that  with  alterations,  or  special  forms  of  legis- 
lation, that  will  readily  suggest  themselves,  the 
general  system  can  be  adapted  to  the  needs  of 
every  State;  and  I  shall  consequently  leave  to 
the  reader  the  task  of  altering  and  suiting  the 
method  to  his  own  ideas  of  statutory  forms  and 
the  exigencies  of  any  particular  state. 

FIRST.  The  service  of  the  State  shall  be  made 
attractive  as  a  career  by  suitable  salaries,  tenure 
of  office  during  good  behavior  and  retiring  al- 
lowance. This  is  a  condition  without  which  the 


48  HOW    TO    GET    GOOD    JUDGES. 

best  class  of  lawyers  cannot  be  obtained  for  the 
Bench  under  any  system,  as  I  have  already  en- 
deavored to  show. 

Provisions  for  the  retirement  of  incapacitated 
judges  and  for  the  removal  of  unworthy  judges 
will  be  stated  hereafter. 

SECOND.  The  whole  bar  of  the  State  shall  be 
divided  into  sections  or  chapters,  and  each 
chapter  shall  be  required  to  select,  in  the  man- 
ner hereinafter  stated,  a  Council  of  Juristic 
Discipline,  which  shall  be  convertible  as  here- 
after described,  into  a  Court  of  Juristic  Disci- 
pline. In  general  terms,  the  division  of  the 
bar  into  sections  or  chapters  shall  be  so  ar- 
ranged: (a)  that  the  several  members  of  each 
chapter  shall  be  residents,  or  have  offices  with- 
in the  same  territorial  district,  so  as  to  enable 
them  to  assemble  when  necessary,  with  as  little 
inconvenience  as  possible;  (b)  that  the  number 
of  members  in  each  chapter  shall  be  as  nearly 
equal  as  possible;  (c)  that  each  chapter  shall 
contain  a  sufficient  number  of  lawyers  to  afford 
ample  choice  in  selecting  members  for  the 
Councils  or  Courts  of  Discipline.  For  example, 
the  State  of  California  may  be  conveniently  di- 
vided for  this  purpose  into  five  territorial  dis- 


HOW    TO    GET    GOOD    JUDGES.  49 

tricts,  each  containing  about  as  many  lawyers 
as  now  practice  in  the  City  of  San  Francisco, 
and  each  district,  chapter,  or  section  of  the  bar 
will  be  large  enough  to  elect  an  efficient  Coun- 
cil or  Court  of  Juristic  Discipline  containing  as 
many  members  as  there  are  judges  of  the  Su- 
perior Courts  of  Record  within  the  district.  (It 
will  be  obvious  that  in  some  States  in  which 
there  are  large  cities,  it  may  not  be  necessary 
or  advisable  to  found  the  chapters  of  the  bar  on 
territorial  limitations  merely.  If  the  numerical 
strength  of  the  bar  be  sufficiently  great  in  a 
thickly  populated  district,  more  than  one  chap- 
ter may  be  established  within  such  a  district, 
and  no  obligation  imposed  upon  the  members 
of  any  chapter  to  reside  in  any  particular  part 
of  the  district.  In  other  words,  in  such  cases 
the  chapters  may  be  established  upon  maxi- 
mum and  minimum  limitations  in  point  of 
numbers,  and  every  lawyer  in  the  district  be 
associated  by  lot,  or  otherwise,  with  a  particular 
chapter  within  the  district.  Details  of  this  kind 
are  not  material.) 

THIRD.  Each  section  or  chapter  shall  be  re- 
quired to  assemble  within  its  district,  and  elect 
from  among  those  of  its  members  who  shall 


50  HOW    TO    GET    GOOD    JUDGES. 

have  been  practicing  ten  years  and  over,  a 
Council  (convertible  into  a  Court)  of  Juristic 
Discipline.  The  number  of  persons  constitut- 
ing this  Council  of  Discipline  shall,  in  Cali- 
forniai  be  about  equal  to  the  number  of  judges 
of  the  Superior  Court  within  the  district.  The 
elections  shall  be  by  the  Australian  Ballot  Sys- 
tem, that  is  to  say:  the  clerk  of  the  Supreme 
Court  (who  has  custody  of  the  roll  of  attorneys) 
shall  be  required  to  print  a  suitable  number  of 
ballots  for  each  chapter,  every  ballot  containing 
in  alphabetical  order  the  names  of  every  lawyer 
of  ten  years'  standing  on  the  roll  of  the  Court, 
and  having  an  office  within  the  district  rele- 
gated to  the  chapter.  Every  duly  admitted 
practitioner  within  the  district  (chapter)  shall 
be  entitled  to  vote  for  the  whole  number  of 
members  of  the  Council  of  Juristic  Discipline, 
and  the  persons  receiving  the  highest  number 
of  votes  shall  be  declared  elected,  except  as  fol- 
lows: not  more  than  one  member  of  any  co- 
partnership of  lawyers  shall  ever,  at  the  same 
time,  be  eligible  to  a  seat  in  the  Council ;  and 
while  the  name  of  every  lawyer  of  over  ten 
years'  standing  must  appear  on  the  ballot, 
whether  he  be  in  co-partnership  or  not,  if  at  an 


HOW    TO    GET    GOOD    JUDGES.  51 

election  more  than  one  member  of  a  co-partner- 
ship shall  appear  to  be  chosen,  only  the  member 
of  the  co-partnership  who  shall  receive  the 
highest  number  of  votes,  as  between  all  the  co- 
partners, shall  be  deemed  elected,  and  the  votes 
cast  for  the  other  members  of  the  co-partner- 
ship shall  be  deemed  to  have  been  cast  for 
him.  (N.  B. — The  provision  against  allowing 
more  than  one  member  of  a  co-partnership  to 
belong  to  the  council  at  the  same  time  should 
be  made  permanent,  to  prevent  the  undue  as- 
cendency of  great  firms  ;  but  the  method  of 
limiting  the  choice  to  one  member  of  a  firm  is 
intended  only  for  the  first  elections.  When 
organized,  the  chapters  may  be  trusted  to 
devise,  if  necessary,  a  better  method  within 
the  lines  of  the  Australian  system.)  The  first 
meetings  of  these  several  chapters  shall  be 
presided  over  by  one  of  the  Justices  of  the 
Supreme  Court  appointed  for  the  purpose  by 
the  Governor  ;  the  president  so  appointed  to 
have  charge  of  the  ballots,  and  be  entrusted 
with  the  duty  of  conducting  the  election. 
This  duty  will,  of  course,  include  the  duty  of 
seeing  that  no  one  but  regularly  admitted  prac- 
titioners having  offices  within  the  district  be 


52  HOW    TO    GET    GOOD    JUDGES. 

allowed  to  vote  ;  that  an  oath  be  administered 
to  each  practitioner  that  he  shall,  without  bias 
or  any  other  motive  than  the  public  good, 
vote  for  those  persons  only  as  members  of  the 
Council  of  Discipline  who,  in  his  private  opin- 
ion, are  by  character  and  attainments  most 
worthy  to  perform  the  duties  assigned  to  them 
as  members  of  the  Council  of  Discipline  and 
thereafter  to  become  judges.  Provision  shall 
be  made  empowering  the  president  of  these 
initial  meetings  to  compel  by  fine,  or  by  sus- 
pension from  practice,  the  attendance  and  vote 
of  each  and  every  member  of  the  bar  within 
the  district.  The  method  of  calling  the  meet- 
ings is  non-essential ;  but  I  deem  requirements 
that  the  voting  shall  be  by  ballot ;  that  none 
but  lawyers  of  ten  years'  standing  shall  be 
eligible  to  be  members  of  the  Council  of  Dis- 
cipline ;  and  that  all  the  members  of  the  chap- 
ter shall  be  required  to  vote,  unless,  of  course, 
sick  or  absent  from  the  State,  essential  for  the 
proper  working  of  the  system. 

FOURTH.  Whenever  the  term  of  office  of 
any  of  the  present  judges  of  the  Superior  Court 
within  any  district  is  about  to  expire,  the 
name  of  such  judge  with  the  names  of  all  the 


HOW   TO    GET    GOOD    JUDGES.  53 

members  of  the  Council  of  Juristic  Discipline 
of  the  district  shall  be  printed  on  the  State 
ballot  as  candidates,  from  among  whom  the 
people  at  large  may  choose  a  new  judge  ;  and 
no  other  person  shall  be  eligible  for  the  office. 
Of  course,  when  a  vacancy  occurs  on  the 
Superior  Bench  by  reason  of -the  death,  volun- 
tary retirement,  or  removal  from  office  of  any 
of  the  present  incumbents,  only  the  names  of 
the  members  of  the  Council  of  Juristic  Disci- 
pline of  the  district  shall  be  printed  on  the 
State  ballot  as  candidates.  And  when  a  mem- 
ber of  the  Council  of  Juristic  Discipline  is 
elected  judge,  or  dies,  or  is  removed  from  the 
council  for  any  cause,  the  vacancy  in  the  coun- 
cil shall  be  immediately  filled  by  the  chapter 
at  an  election  to  be  conducted  on  the  Austral- 
ian ballot  system,  as  provided  in  paragraph  3. 

As  seen  up  to  this  point,  the  proposed  sys- 
tem presents  at  least  these  points  of  advantage: 
(a)  the  Bench  is  made  attractive  to  the  ablest 
class  of  lawyers  ;  (b)  no  one  but  a  lawyer  of  at 
least  ten  years'  standing,  or  a  judge  already 
tested,  can  be  elected  to  the  Superior  Bench. 
There  is,  moreover,  little  likelihood  that  com- 


54  HOW    TO    GET    GOOD    JUDGES. 

binations  will  be  formed  to  promote  unworthy 
men  to  the  Bench.  All  the  general  arguments 
in  favor  of  the  Australian  ballot  system  apply 
in  support  of  the  belief  that  the  choice  made 
by  the  chapters  will  be  as  good  as  is  humanly 
possible  under  any  democratic  form  of  govern- 
ment so  far  as  hitherto  developed.  Profes- 
sional jealousy  will  give  added  caution  to  each 
lawyer  in  casting  his  vote,  for  every  man  will 
desire  to  select  only  such  men  as  will  give  him 
an  equal  chance  with  every  one  of  1iis  brethren 
in  a  trial  for  breach  of  discipline.  And  no  set 
of  lawyers  sufficiently  numerous  to  elect  a 
single  member  of  the  Disciplinary  Council  can 
expect  to  be  always  employed  on  the  same  side 
in  every  litigation  in  the  ordinary  Courts. 
They  must  anticipate  that  at  some  time  in  their 
professional  career  they  may  find  themselves 
opponents  of  each  other.  Hence,  every  law- 
yer's interest  is  to  secure  not  only  impartial 
members  of  the  Councils  of  Discipline,  but 
members  who  are  likely  to  be  unbiased  judges. 
Moreover,  the  people  at  large  have  the  ultimate 
scrutiny  of  all  the  candidates  for  the  Bench 
and  the  ultimate  selection  of  the  judge. 

I  propose,  however,  to  add  another  powerful 


HOW    TO    GET    GOOD    JUDGES.  55 

incentive  to  a  careful  choice  by  the  bar.  I  pro- 
pose to  confer  upon  those  Councils  of  Juristic 
Discipline  such  weighty  powers  over  each  and 
every  member  of  the  profession  as  will  not, 
from  motives  of  self-preservation,  be  entrusted 
by  the  bar  to  any  but  its  best  men. 

h 

FIFTH.  Every  Council  of  Juristic  Discipline 
shall  be  vested  with  power  (1st)  to  issue  licenses 
to  practice  law;  (2nd)  to  hear  and  determine,  as 
a  Court,  all  charges  of  unprofessional  conduct 
brought  against  members  of  the  chapter;  (3rd) 
to  inflict  disciplinary  punishment  for  infrac- 
tions of  professional  ethics;  and  (4th)  to  exer- 
cise such  other  powers  as  may  be  conferred  011 
it  by  the  chapter,  or  by  general  convention  of 
the  bar,  as  hereafter  provided.  When  sitting  as 
a  Court  for  the  trial  of  a  member  of  the  bar,  I 
propose  that  the  Council  shall  be  organized  and 
conduct  its  proceedings  somewhat  after  the 
manner  of  courts-martial;  that  is  to  say,  that 
the  number  of  members  of  the  Council  neces- 
sary to  constitute  a  Court  of  Juristic  Discipline 
shall  be  fixed;  that  the  accused  and  the  accuser 
shall  have  suitable  rights  of  challenging  the 
members  of  the  Court  for  bias;  that  the  votes  of 


56  HOW    TO    GET    GOOD    JUDGES. 

the  Court  on  the  question  submitted  to  it  shall 
be  kept  secret;  that  the  Court  shall  have  power 
to  issue  subpoenas,  punish  for  contempt,  and  so 
forth.  Of  course,  to  guard  against  arbitrary 
conduct  there  may  be  power  reserved  in  the 
Supreme  Court  to  restrain  excess  of  jurisdiction 
by  certiorari,  etc.  But  details  of  all  these  mat- 
ters may  be  relegated  to  the  care  of  the  General 
Council  of  the  bar  hereafter  described. 

As  it  is  manifest  that  general  provisions 
should  be  made  of  uniform  application  through- 
out the  State  for  the  qualifications  of.  persons 
applying  for  admission  to  the  bar;  for  the  offi- 
cers necessary  to  properly  conduct  the  business 
of  the  chapters;  for  the  organization  of  the 
councils  into  Courts  of  Juristic  Discipline,  and 
for  procedure  on  trials  for  infraction  of  profes- 
sional ethics;  and  as  it  may  be  advisable,  in  the 
opinion  of  the  bar,  to  confer  other  powers  or 
duties  of  a  disciplinary  nature  on  these  coun- 
cils, I  propose  an  Assembly  of  all  the  Councils 
of  the  several  chapters  to  be  held  at  some  par- 
ticular place  in  the  State  within  a  suitable 
period  after  the  first  election  of  the  councils. 

SIXTH.      All  of  the   Councils  of  Discipline 


HOW    TO    GET    GOOD    JUDGES.  57 

elected  by  the  various  chapters  of  the  bar  shall 
be  required  to  meet  as  one  body  within  a  cer- 
tain period  after  their  election  at  some  place 
within  the  State,  and  there  enact  a  Code  of  Jur- 
istic Discipline: 

(A)  Providing  the  course  of  study  to  be  pur- 
sued by  persons  studying  law  outside  of  law 
schools;    the  times  and  places  for  the  periodic 
examinations  of  students,  as  hereafter  required; 
the  method  of  registering  law  students,  and  the 
results    of  their  periodic  examinations  on  the 
books  of  the  several  chapters;  and  the  ultimate 
qualifications  for  admission  to  the  bar.     (Cer- 
tain other  matters  pertaining  to  legal  education 
shall  be  rigidly  provided  for  by  law,  as   here- 
after   stated,    without   power    in    the    General 
Council  of  the  bar  to  interfere  therewith.) 

(B)  Denning  the  general  duties 'of  a  lawyer; 
his  duty  toward  his  client;  his  duty  toward  his 
brother  lawyers;    his  duty  toward  the  judges; 
and  his  duty  toward  the  State. 

(  C )  Providing,  so  far  as  may  appear  neces- 
sary, for  a  uniform  constitution  for  the  several 
chapters  :  that  is  to  say,  prescribing  the  neces- 
sary administrative  officers  with  common  pow- 
ers and  duties  ;  common  methods  and  times 


58  HOW    TO    GET    GOOD    JUDGES. 

for  calling  meetings  of  the  members  of  the 
chapters  ;  and  regulating  all  other  matters  in 
which  it  may  appear  advisable  to  preserve  uni- 
formity in  the  business  methods  of  the  several 
chapters,  but  leaving  to  each  chapter  sufficient 
freedom  to  enact  special  by-laws  suitable  to  its 
local  (  or  otherwise  peculiar  )  conditions. 

( D )  Prescribing  the  penalties  to  be  in- 
flicted by  Courts  of  Juristic  Discipline  for  un- 
professional conduct  on  the  part  of  members  of 
the  bar. 

(  E  )  Regulating  the  method  of  organizing 
the  councils  into  Courts  of  Juristic  Discipline 
for  the  trial  of  members  of  the  bar,  and  the 
procedure  on  such  trials. 

(  F  )  Regulating  the  method  of  organizing 
the  councils  into  Courts  of  Juristic  Discipline 
for  preliminary  inquiries  into  charges  affect- 
ing the  conduct  of  judges,  as  hereinafter  pro- 
vided, and  the  procedure  on  such  inquiries. 

(  G  )  Regulating  the  method  of  organizing 
the  councils  into  Courts  of  Inquiry  concerning 
the  retirement  of  incapacitated  judges,  as  here- 
inafter provided,  and  the  procedure  on  such 
inquiries. 

The  project  of  empowering  this  representa- 


HOW    TO    GET    GOOD    JUDGES.  59 

live  body  of  lawyers  to  provide  for  certain 
details  of  legal  education  will  probably  meet 
with  neither  serious  objection  nor  approval 
from  the  general  reader.  Nor  will  there  be 
any  serious  objection  to  empowering  this  body 
to  regulate  the  methods  of  organizing  the  vari- 
ous disciplinary  courts  spoken  of,  or  the  course 
of  procedure  at  trials  before  those  courts,  pro- 
vided the  advisability  of  having  the  courts  as 
part  of  the  judicial  system  of  the  State  suffi- 
ciently appears.  When  the  further  details  of 
the  reform  I  propose  are  read,  proper  reflection 
can  be  given  by  the  reader  to  all  these  matters. 
It  will  doubtless  appear,  however,  to  some 
minds,  trivial  to  require  an  elaborate  statement 
of  ethical  rights  and  duties  in  the  practice  of 
their  profession,  and  a  table  of  penalties  for 
unprofessional  conduct,  to  proceed  from  this 
body.  To  other  minds,  the  objection  will  oc- 
cur that  the  Code  of  Civil  Procedure  of  this 
State  has  already  announced,  with  all  the  force 
of  legislative  enactment,  the  duties  of  attorneys 
and  counselors,  and  no  greater  force  would 
attach  to  a  declaration  of  those  duties  proceed- 
ing from  a  representative  body  of  lawyers  than 
now  attaches  to  the  section  of  the  Code  of  Pro- 


60  HOW    TO    GET    GOOD    JUDGES. 

eedure.  Since  these  objections  cannot  suitably 
be  considered  elsewhere  in  this  essay,  a  few 
words  on  these  subjects  may  be  pardoned  here. 

That  we  must  have  some  code  or  standard  of 
ethics  for  the  government  of  attorneys  and 
counselors  at  law  in  the  practice  of  their  pro- 
fession cannot  be  gainsaid  so  long  as  there  re- 
mains on  the  Statute-book  such  a  section  as 
Section  282  of  the  Code  of  Civil  Procedure. 
For  the  benefit  of  lay  readers  of  this  essay,  I 
reproduce  here  that  section  : 

"  Section  282.  It  is  the  duty  of  an  attorney 
"  and  counselor  : 

"  1.  To  support  the  Constitution  and  laws 
"  of  the  United  States  and  of  this  State  ; 

"  2.  To  maintain  the  respect  due  to  courts 
"and  judicial  officers  ; 

"  3.  To  counsel  or  maintain  such  actions, 
"  proceedings,  or  defenses  only  as  appear  to 
"  him  legal  or  just,  except  the  defense  of  a  per- 
"  son  charged  with  a  public  offense  ; 

"  4.  To  employ  for  the  purpose  of  maintain- 
"  ing  the  causes  confided  to  him  such  means 
"  only  as  are  consistent  with  truth,  and  never 
"  seek  to  mislead  a  judge,  or  any  judicial  offi- 
"  cer  by  an  artifice,  or  false  statement  of  fact 
"  or  law  ; 


HOW    TO    GET    GOOD    JUDGES.  61 

"  5.  To  maintain  inviolate  the  confidence, 
"  and  at  every  peril  to  himself,  to  preserve  the 
"  secrets  of  his  client ; 

"  6.  To  abstain  from  all  offensive  personal- 
"  ity,  and  to  advance  no  fact  prejudicial  to  the 
"  honor  or  reputation  of  a  party  or  witness, 
"  unless  required  by  the  jastice  of  the  cause 
"  with  which  he  is  charged  ; 

"  7.  Not  to  encourage  the  commencement 
"  or  continuance  of  an  action  or  proceeding 
"  from  any  corrupt  motive  of  passion  or  in- 
"  terest  ; 

"  8.  Never  to  reject,  for  any  consideration 
"  personal  to  himself,  the  cause  of  the  defense- 
"  less  or  the  oppressed." 

If  this  section  is  carefully  analyzed  it  will  be 
seen  that  the  Legislature  imposes  upon  attor- 
neys and  counselors  many  duties  which,  though 
absolutely  essential  to  the  proper  and  honest 
discharge  of  their  functions,  are  habitually  dis- 
regarded. This  is  principally  because  the  con- 
ditions surrounding  the  practice  of  the  law 
under  our  judicial  system  are  such  that  the  duty 
to  the  client  almost  obliterates  every  other  sense 
of  duty.  The  client's  interests  overween  the 
State's  interests,  because  the  client  possesses 


62  HOW    TO    GET    GOOD    JUDGES. 

and  employs  adequate  means  both  of  rewarding 
successful  and  punishing  unsuccessful  methods. 
The  State,  on  the  other  hand,  neither  offers 
suitable  rewards  for  observance  of  the  duties  of 
lawyers  toward  it,  nor  provides  tribunals  suit- 
able to  examine  cases  of  alleged  infraction  and 
punish  delinquencies.  The  fact  is  undoubted 
that  most  of  the  provisions  of  Section  282  of  the 
Code  of  Civil  Procedure  are  habitually  disre- 
garded by  otherwise  honorable  lawyers,  because 
most  of  the  duties  seem  impossible  to  be  strictly 
observed,  under  existing  conditions,  and  hence 
are  not  binding  on  professional  consciences. 
The  only  duty  imposed  by  the  State  that  is 
rarely  disregarded,  and  when  disregarded  ever 
meets  with  adequate  punishment,  is  the  duty  to 
the  client.  For  while  it  is  true  that  the  Su- 
preme Court  possesses  the  power  of  punishing 
lawyers  for  all  breaches  of  professional  ethics,  it 
commonly  moves  against  and  punishes  only 
cases  of  gross  swindling  or  deception.  I  think 
I  have  never  heard  of  a  charge  being  made 
against  a  lawyer  for  failing  to  maintain  the  re- 
spect due  to  Courts  and  judicial  officers,  though 
I  have  often  heard  lawyers  malign  judges;  nor 
have  I  heard  of  a  charge  of  counseling  an  il- 


HOW    TO    GET    GOOD    JUDGES.  63 

legal  or  unjust  action;  or  indulging  in  offensive 
personality;  or  of  advancing  unnecessarily  facts 
prejudicial  to  the  honor  of  a  witness;  or  of  en- 
couraging an  action  from  a  corrupt  motive  of 
passion  or  interest;  yet,  though  I  do  not  intend 
unnecessarily  to  disparage  rny  profession,  if  all 
the  infractions  of  those  duties  that  occur  daily 
were  brought  to  the  attention  of  the  Court  for 
adjudication,  it  is  not  unlikely  that  the  Court 
would  have  little  time  to  spare  for  any  work  on 
the  congested  mass  of  litigation  now  before  it. 
The  Supreme  Court  is  thus,  obviously,  not  a 
tribunal  adequate  to  preserve  such  discipline  as 
the  Legislature  has  enacted  for  the  bar.  I  pro- 
pose to  confer  upon  the  bar  itself  the  power  to 
discipline  its  members.  The  English  bar  does 
this  effectively  through  the  Benchers  of  its 
Inns  of  Court.  The  French  bar  has  always 
been  effectively  organized  for  its  own  govern- 
ment, and  through  all  the  revolutions  and 
changes  of  society  in  France  has  maintained  a 
very  high  standard  of  professional  honor.  It 
has  always  had  similar  bodies  to  the  Councils 
of  Discipline  which  I  propose.  Long  ago  these 
bodies  formulated  a  thoroughly  practical  and 
elevating  code  of  professional  ethics  (which  is 


64  HOW    TO    GET    GOOD    JUDGES. 

little  more  than  an  elaboration  of  the  duties  of 
attorneys  and  counselors  prescribed  by  our 
code)  and  provided  different  kinds  of  disciplin- 
ary punishment,  viz.:  "  the  Warning,"  "the 
Private  Reprimand,"  "  the  Public  Reprimand/' 
"  Temporary  Suspension  from  Practice,"  "Total 
Expulsion  from  the  Profession."  There  is  very 
little  in  the  French  code  of  professional  ethics 
which  is  unsuited  to  our  methods,  and  which 
might  not  be  adopted  by  us  with  thoroughly 
good  results.  But  even  if  we  cannot  expect  our 
bar  to  be  so  rigid  in  its  discipline,  we  can  ob- 
tain from  it,  at  least,  a  statement  of  some  simple 
duties  which  it  is  willing  to  acknowledge.  The 
voluntary  statement  of  a  duty  is,  to  any  set  of 
men  that  ventures  to  state  it,  a  substantial  stim- 
ulus to  the  performance  of  the  duty;  and  if  there 
be  a  tribunal  charged  with  the  power  of  enforc- 
ing the  performance  of  that  duty,  composed  of 
the  best  men  who  have  assisted  in  enunciating 
the  duty,  we  shall  have  a  still  greater  stimulus 
to  its  general  performance.  Supposing  that  the 
tone  of  our  bar  is  now  so  low  that  it  will  only 
enunciate  the  simplest  duties,  still,  from  the  ex- 
ercise of  simple  duties  a  knowledge  and  appre- 
ciation of  the  value  of  more  refined  duties  will 


HOW   TO    GET    GOOD    JUDGES.  65 

in  time  arise.  If  it  be  not  true  that  there  is  a 
subtler  and  more  powerful  compulsion  to  per- 
form a  duty  we  have  voluntarily  assumed,  and 
to  obey  tribunals  we  have  ourselves  constituted, 
than  there  is  to  perform  duties  and  obey  tri- 
bunals forcibly  imposed  upon  us  by  others,  then 
there  is  no  ground  for  all  bur  hope  in  self- 
government.  Self-government  according  to 
function  is  surely  the  complement  of  the  ideas 
of  national  and  local  self-government. 

For  these  reasons,  and  others  which  space 
prevents  me  from  elaborating,  I  propose  to 
confer  upon  the  bar  power  to  discipline  itself 
according  to  a  code,  and  through  officers  of  its 
own  choice;  and  I  propose  to  recruit  our  Bench 
from  the  most  worthy  members  of  a  self-re- 
specting bar.  This  will  superadd  to  our  sys- 
tem the  best  feature  of  the  modern  English 
bar,  viz.:  its  influence  on  the  choice  of  judges, 
and  the  best  feature  of  the  French  bar,  viz.: 
its  system  of  maintaining  the  integrity  of  its 
members.  The  English  system  evolves  to  the 
front  rank  the  best  and  most  honorable  law- 
yers for  the  purpose  of  providing  judges  ;  the 
French  system,  while  it  does  not  provide 
judges  (for  the  French  judges  are  not  selected 


66  HOW    TO    GET    GOOD    JUDGES. 

from  the  bar,  but  are  a  special  profession),  still 
maintains  admirably  the  integrity  of  its  advo- 
cates. Granting  the  superior  American  tal- 
ent for  self-government,  the  American  system 
should  be  better  than  either. 

SEVENTH.  The  judges  of  the  Supreme  Court 
(Court  of  Appeals)  shall  be  chosen  by,  and 
from  among,  the  judges  of  the  Superior  Court 
(highest  Court  of  original  jurisdiction).  When- 
ever a  judge  of  the  Supreme  Court  is  to  be 
elected,  the  name  of  the  out-going  judge  (if 
there  be  one)  shall  be  printed  on  a  State  ballot 
with  the  names  of  all  the  judges  of  the  Super- 
ior Courts,  in  alphabetical  order.  This  ballot 
shall  be  furnished  in  sufficient  numbers  to  a 
general  convocation  of  the  judges  of  the  Super- 
ior Courts,  assembled  for  the  purpose  of  elect- 
ing a  person  to  fill  the  vacancy  on  the  Supreme 
Bench.  Each  Superior  Judge  shall  be  entitled 
to  two  votes,  one  to  be  termed  "[first  choice/' 
and  the  other  "second  choice."  The  person 
receiving  the  highest  number  of  votes  to  be 
declared  elected. 

The  classical  origin  of  this  method  of  vot- 
ing will  be  readily  perceived.  Each  judge 


HOW    TO    GET    GOOD    JUDGES.  67 

may  vote  for  himself  for  first  choice,  while  all 
may  unite  on  a  Solon  for  second  choice.  Solon 
would  be  elected. 

It  is  best  for  many  reasons  that  the  judges  of 
the  high  courts  of  original  jurisdiction  shall 
select  the  judges  of  the  Supreme  Appellate 
Courts.  It  often  happens  noV  that  the  Appel- 
late Courts  contain  some  judges  of  marked  infe- 
riority to  some  of  the  judges  of  the  lower  courts. 
This  is  one  great  cause  of  uncertainty  in  the 
law,  and  plainly  is  not  conducive  to  respect  for 
the  accuracy  of  ultimate  judicial  conclusions. 
If  the  members  of  the  appellate  tribunal  are 
chosen  by  a  method  which  implies  an  ac- 
knowledgment of  their  peculiar  adaptability 
to  the  function  —  and  that  implied  acknowl- 
edgment is,  moreover,  made  by  the  judicial 
officers  whose  supposed  errors  are  to  be  exam- 
ined— the  judgments  of  such  a  tribunal  must  of 
necessity  command  the  greatest  weight.  The 
most  logical  method  of  selecting  the  members 
of  appellate  tribunals,  then,  is  by  free  vote  of 
the  judges  over  whom  they  are  to  sit.  But,  if  a 
more  "  popular "  system  of  election  be  pre- 
ferred, a  similar  result  might  be  reached  ( in  a 
lesser  degree  )  by  a  law  providing  that  no  one 


68  HOW    TO    GET    GOOD    JUDGES. 

but  a  judge  of  the  highest  court  of  original 
jurisdiction  shall  be  eligible  for  a  seat  in  the 
Court  of  Appeals,  and  requiring  that  the  names 
of  all  the  judges  of  the  lower  court  be  printed 
on  a  State  ballot,  for  choice  by  the  body  of  the 
people.  This  latter  method  might,  however, 
be  a  temptation  to  some  judges  to  court  "  pop- 
ularity," or  at  least  attach  to  those  elected  the 
suspicion  of  having  courted  "  popularity,"  and, 
therefore,  I  much  prefer  the  idea  of  having  the 
judges  of  the  lower  courts  select  their  superior 
officers.  If  militia  men  may  select  company 
officers,  and  those  officers  again  may  select 
field  officers,  it  is  not  plain  to  me  why  a  simi- 
lar method  may  not  be  followed  in  the  judicial 
service  of  the  State. 

I  now  proceed  to  the  next  general  proposi- 
tions —  which  relate  to  preparation  for  and  ad- 
mission to  the  Bar  : 

EIGHTH.  No  Court  shall  possess  power  to 
admit  persons  to  the  practice  of  the  law,  but 
instead,  every  Council  of  Juristic  Discipline 
throughout  the  State  shall  appoint  an  Exami- 
ner of  law  students  ;  all  the  Examiners  shall 
act  together  as  a  board,  and  be  required  to  at- 


HOW    TO    GET    GOOD    JUDGES.  69 

tend,  once  in  each  year,  within  every  district, 
for  the  purpose  of  examining  all  such  persons 
as  shall  desire  to  enter  upon  and  those  who 
may  be  already  pursuing  the  study  of  the  law 
with  the  intention  of  becoming  law  practi- 
tioners. It  shall  be  the  duty  of  the  Board  of 
Examiners  to  strictly  examine  every  person 
applying  to  be  enrolled  as  a  student  at  law  in 
respect  to  his  general  educational  qualifications 
and  moral  character.  Every  person  applying 
to  be  enrolled  as  a  law  student,  and  who  shall 
pass  such  an  examination  as  is  required  for 
graduation  at  a  free  high  school  of  the  State, 
or  for  admission  to  a  State  university,  shall  be 
enrolled  in  the  books  of  the  chapter  of  the  bar 
within  whose  district  he  intends  to  pursue  his 
studies,  and  shall  thereafter  be  examined  every 
year,  by  the  Board  of  Legal  Education,  in  re- 
spect to  his  advancement  in  the  course  of 
study  prescribed  by  the  General  Council  of  the 
bar,  and  a  suitable  record  kept  of  his  progress, 
unless  he  shall  give  proof  that  he  is  in  regular 
attendance  at  some  law  school  requiring  an 
adequate  course  of  study.  No  person  pursuing 
his  law  studies  outside  of  a  law  school  shall 
be  admitted  to  practice  law  until  he  shall  have 


70  HOW    TO    GET    GOOD    JUDGES. 

pursued  a  course  of  five  years'  study  and  shall 
have  successfully  passed  all  the  annual  exami- 
nations. Every  person,  whether  attending  a 
law  school  or  not,  who  shall  enter  upon  the 
study  of  the  law  with  the  intention  of  becom- 
ing a  practitioner,  shall  first  be  enrolled  as  a 
law  student,  with  a  statement  of  the  method 
by  which  he  intends  to  pursue  his  studies,  on 
the  books  of  the  local  Council  of  Juristic  Dis- 
cipline, and  shall  be  subject  to  such  discipline 
as  the  council  may  enact.  But  no  fees  shall 
ever  be  required  for  enrollment,  examination 
or  admission  to  the  bar,  and  no  person  shall 
ever  be  refused  admission  as  a  student,  or  as 
an  attorney  or  counselor,  on  account  of  age, 
color,  physical  infirmity  or  number  of  persons 
already  enrolled  as  students,  attorneys  or  coun- 
selors. Every  student,  before  final  admission 
as  attorney  or  counselor  (whether  he  may 
have  studied  within  or  without  a  law  school), 
shall  be  finally  examined  as  to  his  qualifica- 
tions by  the  Board  of  Legal  Education,  who,  if 
he  shall  satisfactorily  acquit  himself,  must  re- 
port the  fact  to  the  local  Council  of  Juristic 
Discipline,  and  the  council  shall  be  required 
thereupon  (unless  he  has  been  disciplined  for 


HOW    TO    GET    GOOD    JUDGES.  71 

cause)  to  issue  to  him  a  license  to  practice  law 
in  all  the  Courts  of  the  State.  Thereupon,  he 
shall  be  enrolled  as  a  member  of  whatever 
chapter  of  the  bar  may  exercise  its  functions 
within  the  district  selected  by  him  for  com- 
mencing practice. 

The  subject  of  legal  education  is  a  very  large 
one,  and  I  shall  touch  only  upon  such  aspects  of 
it  as  will  serve  to  elucidate  some  of  the  ideas 
contained  in  the  last  preceding  provisions.  It 
is  a  singular  fact  that,  though  the  legal  profes- 
sion has  never  been  jealous  of  the  admission 
of  new  members,  there  yet  grew  up  in  the 
minds  of  the  people  of  the  United  States,  about 
the  "  Forties,"  an  idea  that  the  profession  was 
exclusive  and  aristocratic.  As  a  result,  an  em- 
inent member  of  the  New  York  bar  infected 
the  popular  mind  many  years  ago  with  the 
vicious  notion  that  every,  one  who  chose  to  ap- 
ply should  be  permitted  to  practice  law,  be- 
cause ( he  argued  )  only  those  who  were  com- 
petent could  succeed.  While  this  notion  is 
supported  by  the  undoubted  facts  that  a  law- 
yer's work  must  always  run  the  gauntlet  of 
criticism  and  opposition,  and  that  entirely  in- 
competent men  cannot  make  great  successes, 


72  HOW    TO    GET    GOOD    JUDGES. 

more  important  facts,  that  in  time  demon- 
strated the  falsity  of  the  theory,  were  over- 
looked for  many  years.  The  law  is  not  a  pro- 
fession which  can  be  followed  by  illiterate,  in- 
competent, or  dishonest  men,  without  inflicting 
the  gravest  injuries  not  only  upon  clients,  but 
also  upon  the  entire  body  politic.  While  a 
man  is  demonstrating  his  special  unfitiiess  to 
be  a  lawyer  (and  perhaps  making  money  in 
the  process),  he  may  ruin  many  a  client,  or  in- 
troduce many  a  scandalous  practice  irretrieva- 
bly injurious  to  the  reputation  of  legal  methods 
in  general.  They  found  this  out  in  New  York 
after  an  interval  of  about  twenty-five  years, 
and  recognized,  almost  too  late,  what  would 
seem  to  be  apparent  at  first  sight,  viz.:  that  the 
State  owes  the  duty  to  itself  and  to  its  citizens 
that  its  license  to  practice  law  shall  import 
that  the  individual  to  whom  it  is  issued  has 
given  some  evidence  of  adequate  attainments. 
So  the  State  of  New  York  has,  within  the  past 
ten  years,  begun  to  make  some  stringent  re- 
quirements for  admission  to  practice. 

California  (  following  the  earliest  crudities  ) 
has,  in  order  to  provide  its  citizens  with  com- 
petent lawyers,  made  a  futile  enactment  that 


HOW    TO    GET    GOOD    JUDGES.  73 

"  every  applicant  for  admission  as  attorney 
"  and  counselor  must  produce  satisfactory  tes- 
"  timonials  of  good  moral  character,  and  un- 
"  dergo  a  strict  examination  in  open  court "  (I  \  !) 
"  as  to  his  qualifications  by  the  justices  of  the 
"  Supreme  Court,"  etc.,  and  so  disposes  of  the 
whole  matter.  With  the  best  intentions  in  the 
world,  our  overworked  judges  cannot  adequate- 
ly perform  all  that  they  know  to  be  necessary 
and  that  is  here  impliedly  required  of  them. 
Consequently,  there  are  persons  at  the  bar  who 
must  have  obtained  their  "  satisfactory  testi- 
monials of  good  moral  character  "  in  a  former 
state  of  existence,  and  who,  if  they  ever  under- 
went a  "  strict  examination  "  in  open  court  as 
to  their  professional  qualifications,  were  on  that 
lucky  day  gifted  by  Providence  with  a  miracu- 
lous intellect  "  for  the  occasion  only."  This 
must  be  apparent  to  many  judges  before  whom 
some  of  the  practioners  they  created  now  ap- 
pear. So  I  conclude  that  a  single  examination 
of  "  testimonials  of  good  moral  character,"  and 
"  qualifications  in  the  law,"  however  much  the 
Legislature  may  require  it  to  be  strict,  cannot 
give  such  assurance  of  capacity  for  the  practice 
of  the  law  as  a  probationary  period  of  five 


74  HOW    TO    GET    GOOD    JUDGES. 

years,  passed  under  watchful  eyes,  with  power 
to  discipline  for  unbecoming  conduct,  and  with 
periodical  examinations  into  the  diligence,  ca- 
pacity and  advancement  of  the  student.  If  a 
single  strict  " examination  in  open  court"  is 
advisable  for  the  State's  purposes,  surely  a 
yearly  examination  for  five  years  will  be  more 
advantageous.  True,  some  students  may  have 
greater  minds  than  others  and  be  prepared 
sooner  for  the  work  of  life  ;  but  such  lucky 
men  can  afford  to  wait,  for  they  will  bring 
with  them  to  the  bar  superior  reputations. 

Moreover,  the  time  of  the  Courts  should  be 
devoted  to  other  work  than  this  of  examining 
students — highly  important  though  the  work  is. 
I  propose,  in  view  of  its  importance  and  the 
labor  it  involves,  to  have  it  performed  in  an- 
other and  better  way.  And  while  I  provide 
that  no  one  who  can  attend  and  profit  by  the 
free  public  schools  shall  find  the  profession  of 
the  law  closed  to  him  for  any  undemocratic 
reason,  I  provide  also  that  the  State  shall  be  as- 
sured that  its  license  to  practice  law  cannot  be 
obtained  by  any  one  unfit  to  hold  it. 

NINTH.  The  State  shall  pay  reasonable  sala- 
ries to  the  examiners  to  be  appointed  under  this 


HOW    TO    GET    GOOD    JUDGES.  75 

system;  it  shall  also  pay  traveling  expenses 
and  per  diem  allowances  to  the  members  of  the 
General  Council  of  Juristic  Discipline,  while  in 
session,  equal  in  amount  to  the  allowances  made 
to  members  of  the  Legislature;  it  shall  also  pay 
like  per  diem  allowances  to  the  members  of 
every  Court  of  Juristic  Discipline  for  every  day 
engaged  in  the  actual  hearing  of  trials. 

If  I  am  right  in  hoping  that  the  general  sys- 
tem which  I  propose  will  in  time  elevate  the 
character  of  the  bench  and  bar,  and  will  in  time 
inspire  public  confidence  in  the  administration 
of  justice,  surely  no  money  can  be  better  ex- 
pended by  the  State.  Leaving  out  of  view  the 
inestimable  value  of  an  increased  self-respect  as 
Americans,  the  financial  saving  that  will  be  ef- 
fected by  a  well  ordered  judicial  system  is  in- 
calculable. There  ought  to  be  no  hesitancy  to 
provide  suitable  salaries  for  such  important 
functionaries  as  persons  charged  with  the  duty 
of  training  and  examining  American  youth  for 
admission  to  the  American  bar.  And  as  to  the 
per  diem  allowances  suggested  for  members  of 
the  Disciplinary  Courts  while  in  actual  session, 
it  ought  to  be  sufficient  to  point  out  that  such 
allowances  will  rarely  be  adequate  "compensa- 


76  HOW    TO    GET   GOOD    JUDGES. 

tion"  to  the  persons  likely  to  be  members  of 
such  Courts  for  the  time  withdrawn  from  their 
regular  practice  for  the  performance  of  the 
duties  imposed  on  them;  and,  consequently 
(following  the  principle  on  which  we  pay  mem- 
bers of  our  Legislature),  the  payments  suggest- 
ed are  mainly  intended  to  empha'size  the  duties 
imposed,  and  their  effect  to  relieve  somewhat 
the  burden  of  performance  is  a  mere  incident. 

TENTH.  All  licenses  to  practice  law  at  pres- 
ent held,  and  all  licenses  hereafter  granted,  shall 
be  held  and  granted  upon  condition  that  the 
holder  shall  accept  the  office,  and  diligently  fulfil 
all  the  duties  of  member  of  any  and  every  Coun- 
cil or  Court  of  Juristic  Discipline  to  which  he 
may  be  elected..  If  any  person  shall  decline  to 
accept  the  office  of  member  of  a  Council  of  Dis- 
cipline, except  for  physical  incapacity  to  perform 
its  duties,  or  if  any  person  shall  decline  to  act 
as  a  member  of  a  Court  of  Discipline,  except  for 
actual  bias  or  interest  in  the  result  of  a  trial, 
such  person  shall  ipso  facto  cease  to  be  a  mem- 
ber of  the  bar.  If  a  member  of  a  Council  of 
Discipline  shall  desire  not  to  accept  the  office  » 
of  judge,  he  must  announce  his  unwillingness  in 


HOW    TO    GET    GOOD    JUDGES.  77 

writing  to  the  chapter  of  the  bar  to  which  he 
belongs,  within  a  stated  period  (say  not  less  than 
three  months)  before  the  time  appointed  by 
law  for  the  next  election  of  judges  at  which  his 
name  would  otherwise  appear  as  one  of  the 
chosen  candidates.  Upon  such  announcement 
the  member  declining  to  become  a  candidate  for 
judge  shall  ipso  facto  cease  to  be  a  member  of 
the  Council  of  Discipline,  and  forever  after  be 
ineligible  to  be  a  member  of  any  Council  or 
Court  of  Juristic  Discipline,  and  an  election 
shall  forthwith  be  held  by  the  chapter  of  the 
bar  to  which  he  belongs  to  fill  his  place  in  the 
council.  He  shall  not,  however,  be  restricted  in 
the  practice  of  his  profession  or  otherwise  dis- 
ciplined for  his  refusal  to  become  a  judge. 

If  the  State  should  offer  its  judges  salaries 
so  large  that  no  practice  at  the  bar,  however 
lucrative,  would  afford  an  equal  income,  there 
would  be  no  injustice  in  providing  that  if  a 
lawyer,  having  physical  capacity  to  perform 
the  duties,  shall  refuse  to  accept  the  office  of 
member  of  a  Council  of  Juristic  Discipline,  or 
that  of  judge  when  elected  thereto,  he  shall 
ipso  facto  cease  to  have  the  right  to  practice 
law.  But  salaries  as  large  as  the  largest  re- 


78  HOW    TO    GET    GOOD    JUDGES. 

wards  of  private  practice  are  hardly  to  be  ex- 
pected from  the  State.  Liberal  salaries  and 
tenure  of  office  during  good  behavior,  with 
retiring  allowances  to  faithful  judges,  are  abso- 
lutely essential  to,  and  if  they  are  granted  will 
insure  the  successful  working  of  the  reform  I 
propose  ;  but  salaries,  tenure  of  office  and  le- 
tiring  allowances  may  be  liberal  and  sufficient, 
and  yet  there  may  sometimes  arise  such  a  case 
as  that  of  a  member  of  the  bar  receiving  a 
larger  income  from  his  profession  than  the  sal- 
ary attached  to  the  office  of  judge,  but  having 
a  large  family  to  maintain,  and  requiring  all 
his  professional  income  for  the  maintenance  of 
his  family.  The  injustice  of  forcing  a  man, 
under  such  circumstances,  to  surrender  his 
necessary  means  of  support  would  operate 
strongly,  in  many  minds,  against  the  radical 
measure  of  expelling  him  from  the  bar  for  re- 
fusal to  become  judge.  But,  on  the  other 
hand,  some  minds  may  apprehend  that  since 
it  is  almost  certain  that  the  most  successful 
lawyers  will  be  chosen  for  the  members  of  the 
Councils  of  Juristic  Discipline,  and  since  no  one 
but  a  member  of  one  of  those  councils  is  eligi- 
ble to  be  a  judge,  there  is  danger  that  combi- 


HOW    TO    GET    GOOD    JUDGES. 


nations  may  be  formed  among  some  members 
of  the  councils  to  decline  to  accept  the  office  of 
judge,  and  thus,  by  limiting  the  number  of  can- 
didates to  be  presented  to  the  people,  such 
combinations  might  practically  appoint  to  the 
Bench  persons  of  their  own  selection.  It  might 
be  apprehended,  moreover^  that  if,  after  hav- 
ing so  managed  to  select  a  judge,  the  members 
of  the  council  unwilling  to  be  judges  remain  in 
the  council,  they  will  possess  a  most  unwhole- 
some influence,  if  not  practical  control  over 
the  Bar  and  Bench;  for,  so  long  as  the  combina- 
tion continued,  only  the  newly  elected  members 
of  the  council  would  be  presented  as  candi- 
dates for  the  office  of  judge,  and  the  linger- 
ing members  of  the  council  would  practically 
be  governors  of  the  bar  and  nominators  of 
the  judges.  Now,  while  I  regard  it  equally  un- 
likely that  any  lawyer  shall  refuse  to  go  on  the 
Bench,  or  that  there  will  arise  any  such  com- 
binations, if  the  State  will  offer  reasonably  lib- 
eral salaries,  tenure  of  office  and  retiring  allow- 
ances, and  put  into  operation  the  other  measures 
of  reform  I  have  and  shall  indicate,  still,  to 
relieve  the  apprehensions  that  arise  in  so 
many  minds,  that  there  is  lurking  danger  in 


80  HOW    TO    GET    GOOD    JUDGES. 

every  scheme  of  reform,  I  have  endeavored  to 
provide  here,  as  everywhere  throughout  the 
system,  a  practical  safe-guard  against  abuse. 
Hence,  I  provide  in  this  tenth  step  of  reform 
that  every  lawyer,  without  exception,  must 
serve  on  the  Councils  and  Courts  of  Juristic 
Discipline,  if  elected  thereto,  and  thus  be  of- 
fered an  opportunity  to  go  on  the  Bench  if 
chosen  by  the  people ;  nevertheless,  if  any 
person,  eligible  to  the  Bench,  shall  prefer  the 
rewards  of  private  practice,  he  must  take  his 
place  in  the  rank  and  file  of  Jiis  profession,  to 
pursue  his  financial  aims  subject  to  the  super- 
vision of  better  or  less  necessitous  men. 

I  advance  now  to  some  general  propositions 
for  the  discipline  of  the  Bench: 

ELEVENTH.  The  Governor,  or  any  District 
Council  of  Discipline,  shall  have  power  to  con- 
vene a  General  Court  of  Juristic  Discipline  for 
the  purpose  of  hearing  any  accusations  that 
may  be  brought  against  a  judge  for  conduct 
unbecoming  the  judicial  office.  The  General 
Court  of  Juristic  Discipline  assembled  for  this 
purpose  shall  consist  ( if  deemed  advisable  )  of 
a.  larger  number  of  members  than  a  Court  of 


HOW    TO    GET    GOOD    JUDGES.  81 

Juristic  Discipline  for  the  trial  of  a  member  of 
the  bar.  And,  in  order  that  local  prejudice  or 
passion  shall  not  s'way  the  Court,  its  members 
shall  be  chosen  from  all  the  Councils  of  Juris- 
tic Discipline  throughout  the  State  by  lot,  with 
challenges  allowed  for  bias,  etc.,  as  juries  are 
selected  from  a  large  panel.  "The  inquiry  of 
the  General  Court  of  Juristic  Discipline  shall 
merely  be  :  Is  there  reasonable  ground  to  be- 
lieve that  conduct  unbecoming  a  judicial  offi- 
cer has  been  committed  by  the  accused  ;  and 
the  judgment  shall  extend  only  to  a  suspension 
of  the  accused  judge  until  such  time  as  he  may 
be  tried  by  the  ordinary  High  Court  of  Im- 
peachment of  the  State.  The  General  Court  of 
Juristic  Discipline  shall  be  granted  all  neces- 
sary powers  to  conduct  its  proceedings  and 
may  appoint  prosecutors  before  the  Court  of 
Impeachment,  if  deemed  necessary. 

TWELFTH.  The  Governor,  or  any  District 
Council  of  Discipline,  shall  have  power  to  con- 
vene a  General  Court  of  Juristic  Discipline  to 
act  as  a  retiring  board,  in  case  it  shall  appear 
that  any  judge  has  become  physically  or  men- 
tally incapable  of  performing  the  duties  of  his 


82  HOW    TO    GET    GOOD     JUDGES. 

office,  and  such  Court  so  assembled  shall  have 
power  to  retire  the  judge  for  cause  shown. 

THIRTEENTH.  Every  chapter  of  the  bar  shall 
designate  a  place  for  the  preservation  of  its 
records,  and  a  place  for  holding  its  meetings, 
and  for  the  meetings  of  the  Council  of  Disci- 
pline elected  by  it.  At  the  request  of  any 
chapter  of  the  bar,  the  Board  of  Supervisors 
(  or  other  suitable  county  officials  )  shall  be  re- 
quired to  provide  suitable  rooms  and  furniture 
for  keeping  the  records  of  the  chapter,  and  for 
the  meetings  of  the  chapter  and  of  its  Council 
of  Discipline. 

FOURTEENTH.  Whenever  any  member  of  a 
Council  of  Discipline  shall,  in  any  manner,  be- 
come aware  that  any  charge  has  been  made 
against  any  judge  or  member  of  the  bar,  of 
official  or  professional  misconduct,  or  ineffi- 
ciency, or  of  conduct  which  might  have  a  ten- 
dency to  impair  respect  for  the  administration 
of  the  law,  it  shall  be  the  duty  of  such  member 
of  the  Council  of  Discipline,  within  twenty- 
four  hours  after  he  shall  have  received  such 
information,  to  serve  notice  in  writing,  through 
the  mails,  on  each  and  every  other  member  of 


HOW    TO    GET    GOOD    JUDGES.  83 

the  council  to  assemble  at  a  specified  time, 
which  shall  be  not  less  than  than  four  days 
thereafter,  at  the  meeting  place  designated  by 
the  chapter  of  the  bar  for  the  transaction  of  its 
business,  then  and  there  to  consider  what  may 
be  necessary  to  be  done  in  respect  to  such 
charge.  The  failure  of  -the  member  of  the 
council  becoming  aware  of  such  charge  to 
issue  and  mail  the  notices  above  required  with- 
in twenty-four  hours  after  he  becomes  aware 
of  the  charge,  or  the  failure  of  any  member  of 
the  council  to  attend  when  notified,  shall  ipso 
facto  cause  his  suspension  from  practice,  and 
he  shall  not  be  restored  to  the  right  to  practice, 
unless  he  shall  by  affidavit,  filed  in  the  records 
of  the  chapter,  make  oath  that  such  failure 
was  in  no  wise  deliberate,  and  state  the  true 
cause  of  such  failure. 

FIFTEENTH.  The  members  of  the  Council  so 
assembled  shall  forthwith  inquire  into  the  nat- 
ure of  the  charges,  and  shall  be  vested  with  the 
necessary  powers  for  pursuing  the  inquiry,  and 
shall,  if  it  appear  to  be  proper  and  necessary, 
be  empowered  to  issue  a  warrant  for  the  assem- 
bling of  a  suitable  Court  of  Juristic  Discipline 
or  Court  of  Inquiry  as  before  provided. 


84  HOW    TO    GET    GOOD    JUDGES. 

The  object  of  the  two  last  provisions  is  to  en- 
able the  public  to  force  the  bar  to  take  cogni- 
zance of  and  act  upon  scandals  affecting  the 
administration  of  justice.  Thus  the  humblest 
citizen  may  set  in  motion  the  whole  machinery 
of  the  System  of  Discipline  against  the  merest 
"  shyster,"  or  the  highest  judge. 

I  observe,  once  more,  that  the  foundation  of 
judicial  reform  is  better  salaries,  tenure  of 
office  during  good  behavior,  suitable  provision 
for  a  faithful  public  servant  on  retirement,  and 
a  scientific  method  of  evolving  the  best  men  for 
the  Bench.  Unless  the  people  are  willing  to 
concede  all  this  not  much  can  be  done;  once 
granted,  every  safe-guard  that  can  be  devised 
to  promote  discipline  and  prevent  the  growth 
of  a  bureaucratic  or  exclusive  spirit  should  be 
welcomed.  Valuable  additions  to  or  alterations 
in  the  details  of  the  system  I  propose,  no  doubt 
can  be  suggested,  but,  in  the  main,  I  submit 
that  it  is  a  practical  method  of  creating  an  or- 
ganized bench  and  bar,  which,  while  in  no  sense 
exclusive  or  bureaucratic  in  its  spirit,  but  hav- 
ing its  foundation  on  the  American  ideas  of  free 


HOW    TO     GET    GOOD    JUDGES. 


85 


education  and  self-government,  will  neverthe- 
less, by  the  very  nature  of  the  organization,  of 
necessity  be  true  to  the  present  needs  of  the 
country  and  the  perpetuation  of  democratic 
government. 


UNIVERSITY    OF    OALIFORNIA 
LIBRARY 


This  is  the  date  on  which  this 
book  was  charged  out. 


[30m-6,'ll] 


YC  677Z8 


